Board of School Commissioners v. State ex rel. Sander , 129 Ind. 14 ( 1891 )

Miller, J. —

This was a proceeding by mandate to compel the board of school commissioners of the city of Indianapolis to introduce the German language, as a branch of study, into School No. 22, upon the demand of parents and guardians of children in attendance upon that school.

The action was predicated upon section 4497, R. S. 1881, (Acts of 1869, Sp. Sess., p. 40), which reads as follows:

“ The common schools of the State shall be taught in the English language; and the trustees shall provide to have taught in them orthography, reading, writing, arithmetic,, geography, English grammar, physiology, history of the United States, and good behavior, and such other branches-of learning and other languages as the advancement of pupils may require, and the trustees from time to time direct. And whenever the parents or guardians of twenty-five or more children in attendance at any school of a township,, town, or city shall so demand, it shall be the duty of the school trustee or trustees of said township, town, or city, to procure efficient teachers, and introduce the German language as a branch of study into such schools; and the tuition in said schools shall be without charge: Provided, Such demand is made before the teacher for said district is employed.”

The verified petition for the alternative writ alleges, in substance, the following facts :

That one of the schools of the city, under the management of said board of school commissioners, is a school known as Public School No. 22; that the school year of the city extends from September in each year to June of the following year; that before any teachers for said school were procured or employed' for the coming year the parents and guardians of one hundred and twelve children in attendance at said school petitioned and demanded of the appellant board that it procure and employ efficient teachers and introduce the German language as a branch of study into said school for the coming school year; that said board refused to grant said demand, but went on and employed teachers to teach all the, other branches required by law in said school and still other branches not required by law, but all the time refused to provide for teaching the German language in said school. The petition to the board was set out in full with the names of the children and wards. This suit was begun June 21st, 1890.

To this the appellants answered : That, prior to the filing of the demand for the teaching of German, said board, having considered the grading of the Indianapolis schools and the course of instruction therein, and the teaching of German therein, and the employment of teachers therefor, and what branches required by the advancement of pupils should be taught in addition to the statutory branches, all in connection with the revenues, had determined that German should be taught, and could be efficiently taught, for the last seven years of the twelve years’ course of said Indianapolis schools; that the revenues of the board would not permit the teaching of German to a greater extent, and the board had determined to employ teachers for the last seven years ■of the course; that the board had graded the schools; that it had erected buildings in various parts of the city convenient of access to pupils, and had so arranged that pupils in lower grades could attend school nearer home, while those in higher grades, being older and fewer in number, attended at buildings more remotely located; that the number ■of pupils attending in the last seven years of the course was 5,346, and would be greater the coming year; that the estimated revenue for the coming year would be $252,973, of which amount $210,000 would be required for tuition under the present plan of the board; that public school building No. 22 had been erected upon these principles, and that for many years no pupils advanced beyond the fifth year of the school course have attended or been taught at said school building; that none of the pupils mentioned in the petition for teaching German in said school No. 22 have advanced to the sixth grade, and, therefore, they are not entitled to ■enter classes where German is taught; that as soon as said pupils reach the sixth year they will go to buildings where German is taught, and may there study it; that, with the revenue at command, there is no other feasible method of grading the schools of Indianapolis.

To this answer the appellee replied: That for many years the city has been subdivided for general school purposes by the board by erecting school buildings throughout the city, to which children living near have been assigned for attendance according to the grades taught; that, whatever have been the grades taught, it has been the custom of parents and guardians to file petitions for the teaching of German like the petition filed with the complaint for the teaching of German in public school No. 22; that the board has complied with said petitions and has introduced the German .language accordingly; that until the recent refusal of the board, it was supposed by the community that it would continue such compliance; that at a meeting of the board in ■June, 1890, it had on motion refused to provide' for any teaching of the German language in any of the schools of said city during the coming school year; that two thousand children desired to study the German language, but under the plan of the board, as described in the answer, only three hundred of these could do so; that the board, while refusing to provide for teaching the German language, proposed to provide for teaching the following branches not required by law, at an expense out of the school revenues, as follows:

Music................... $13,000

Drawing..................16,000

Manual training............... 1,300

Physical training............... 3,000

Chemistry.................. 1,000

Physics................... 2,000

Greek.....................

Bookkeeping................. 500

Geometry................... 1,000

English literature.............. 2,000

General history............... 500

Algebra................... 3,000

Latin.................... 1,000

Training school for teachers........ . . 1,500

Civil government............... 800

Ehetoric.................. 2,000

Botany.............•*.... 500

That physical training is a new branch of study which the board intends to introduce for the coming school year; that, if the teaching of the German were provided for by the board wherever demands like the one in the complaint have been made, the same would cost not to exceed $10,000 for the coming school year; that the number of pupils in the grades comprising the first five years of the schools during the past year was 11,941, and will be greater during the coming year.

To this reply the appellants demurred for want of facts ; the demurrer was overruled and exception taken. After-trial a judgment was entered directing the mandamus to issue. The appellants appealed, and the only error assigned is that the court erred in overruling the demurrer to the reply.

The claim is made by the appellee that the only question presented by the record is as to the power of the appellants,, in their discretion, to refuse to introduce the study of the German language into any of the public schools of the city, notwithstanding the filing of a proper petition therefor by the requisite number of parents and guardians. This claim is founded upon the allegation in the reply that at the meeting of the board held in June, 1890, a motion providing for the teaching of German in all the schools of the city, in which proper petitions were filed for the same, was voted down,, and a motion made to provide for the teaching of the language as set forth in the defendants' answer was not finally acted upon, followed by the averment that “ said defendants have refused to provide for any teaching of the German language in any of the schools of said city during the coming school year.” The appellee insists that the reply shows that the appellants refused to comply in any manner with the mandate of the statute to introduce the language as a study into the public schools, and that, therefore, the court-did not err in overruling the demurrer to the same.

To give the language quoted the force and effect claimed for it by the appellee would be to eliminate from the case the-only question about which the parties litigant disagree; for the appellants admit, that, upon the filing of a petition by the parents and guardians of the requisite number of children, the statutes imperatively require the language to be taught in the schools.

The answer to which this reply was filed alleges that in May, 1890, the board determined to provide for the teaching of German in some of the grades and schools in the city, and that they would do so without any order of the court.

The meeting of the board at which the motion to employ teachers, and provide for the introduction of the language into the public schools, was held in 'June. This action was commenced in the same month, and the reply filed on the 11th of July; the schools were not to begin until September following. There is no express negation of the facts alleged in the answer, that the board intended to make provision for German in the schools before the opening of the school year.

We understand the allegation of the reply referred to, when read in connection with the answer, to mean that the board had, at that meeting, refused to provide for its introduction, and not that they would not do so prior to the opening of the schools in September, in the manner determined upon at their May meeting.

The purpose of the action was to compel the defendants to introduce the study into a particular school; all the allegations of the petition for a mandate referred to that school; the theory of the relator confined him to that position. The judgment of the court was in accordance with that theory, and by it the defendants were commanded to employ efficient teachers, and introduce the language as a branch of study into that particular school, no order being made with reference to the other schools in the city.

This case is to be determined by the answer to the question : What did the General Assembly mean by the use of the words “ any school,” when it said, in the act approved May 5, 1869 : “ And whenever the parents or guardians of twenty-five, or more, children in attendance at any school of a township, town, or city, shall so demand, it shall be the duty of the school trustee, or trustees, of said township, town, or city, to procure efficient teachers and introduce the German language as a branch of study into such schools.”

The position of the appellee is that the parents and guardians of more than twenty-five pupils in attendance upon Public School No. 22 having, at the proper time, filed the requisite petition, it became the duty of the Board of School Commissioners to provide for its teaching in that particular school, no matter what arrangements may have been made to have it taught in other schools, and to other scholars.

The position of the appellants is, that, while the filing of the petition makes it incumbent upon the board to have the language taught in the schools of the city, they may, in their discretion, determine in what schools, to what grades of pupils, and for what length of time it shall be taught; and that when they have provided for its teaching in some of the schools of the city, convenient of access to the grades to which the language is assigned, they have fully complied with the law, and can not be compelled to have it-taught in Public School No. 22.

In arriving at a correct solution of the question involved, it is instructive to note, in a general way, the origin and growth of legislation upon the subject under consideration.

•For many years prior and subsequent to the adoption of our present Constitution, the selection of teachers and designation of the studies to be taught in the public schools were under the exclusive control of school meetings, composed of the patrons of each school. The first legislative recognition of specific studies was in. the act of March 4th, 1853, which provided that no persons should be licensed to teach in the public schools unless they possessed “ a knowledge of orthography, reading, writing, geography, English grammar.”

In section 150 of the act of 1855, which is the rudiment of the section under which this action was brought, it was enacted that ':

“ The common schools shall be taught in the English language : Provided, however, That schools may teach other languages, in addition to the English, as a branch of education.”

In the act of March 6, 186.5, it was provided that “The common schools of the State shall be taught in the English language, and the trustee shall provide to have taught in them orthography, reading, writing, geography, arithmetic, English grammar, and good behavior, and such other branches of learning, and other languages, as the advancement of pupils may require, and the trustee from time tó time direct; and the tuition in said schools shall be without charge.”

This remained the law until the act of May 5,1869, supra, was enacted.

The first question is, omitting for the present all consideration of the effect of subsequent legislation, to determine if possible the legislative intent in the enactment of this amendment of May 5, 1869, in which, after adding physiology and history of the United States to the required studies, the conditional provision was made for the teaching of the German language.

The act of 1865, which was amended, required seven named branches of learning to be taught, and other studies and languages at the option of the school trustees. It was under that act within the power of the school trustees, if they so desired, to have physiology, history of the United States, and the German language taught in the public schools. The object of the amendment was to compel the teaching of physiology and history of the United States, and to withdraw the German language from the list of purely optional languages that might be taught at the discretion of the trustees, and place it conditionally in the list of required studies. By this legislation the law-making power discriminates in an emphatic manner in favor of the teaching of the German over that of any other language. This amendment was doubtless brought about by the fact that we had then, as now, a large population speaking the German language who desired that their children should receive instruction in that language.

Taking into consideration the course of legislation, and the circumstances under which it was enacted, we are, if possible, to determine from the reading of the act in what schools the Legislature intended the language should be taught.

The rule of construction to be adopted is provided by statute and is as follows. Section 240, R. S. 1881: “ The construction of all statutes of this State shall be by the following rules, unless such construction be plainly repugnant to the intent of the Legislature or of the context of the same statute: •

“First. Words and phrases shall be taken in their plain, or ordinary and usual sense. But technical words and phrases, having a peculiar and appropriate meaning in law, shall be understood according to their technical import.”

As the words used in the act under consideration do not eontain technical words or phrases, relating to the disputed question, having a peculiar meaning in law, we must take the words used in their “ plain, ordinary and usual sense.” In townships, towns and cities, in which but a single school is taught, the solution of the question is easy. The trouble arises in towns and cities in which the schools are taught in many school-houses, placed in different localities, the whole being under one management and control.

While the question may not be entirely free from doubt, we have arrived at the conclusion that the words “any school,” as used in this statute, mean and designate any place where a public school is taught with its complement of teachers and scholars. Such we believe to be the ordinary and usual meaning of the word school, and that this construction is necessary to give effect to the object intended in its enactment. Such, indeed, seems from the reply to have been the construction placed upon the act by the appellants and their predecessors in control of the city schools for many years prior to the year 1890.

By the terms of this act the introduction of no other study into the public schools is made to depend upon the demand or request of the patrons of the school, but on the contrary it has been the evident design of the Legislature to establish, as far as possible, a uniform course of study throughout the whole State.

We take it that the exception to this course of legislation was, primarily, for the benefit of parents and guardians who desired their children and wards to receive instruction in this language, and that a construction that ‘would defeat this purpose ought not to be entertained, if it can be avoided. We are of the opinion that the Legislature contemplated that the parents and guardians of the children in attendance upon a school, who would demand the introduction of the German language, would do so for the purpose of enabling their children and wards to engage in its study, and not for the purpose of enabling some other children and other wards of another grade, and in attendance upon a school,taught in some other school,to receive such instruction.

In this case the parents and guardians of one-hundred and twelve pupils in attendance upon Public School No. 22 asked to have the German language taught in that school, with the undoubted motive of having their children and words engage in its study. In answer to this request the appellants say, in effect, we will not have this language taught in this school, and to your children and wards attending it, but will introduce the study in some other school, in some other part of the city, and to some other pupils. We regard this as a strained and unnatural construction of the words of the act, utterly subversive of the purpose of its enactment.

If the position of the appellants is the correct one, a petition by the parents and guardians of twenty-five pupils in attendance upon any one of the many public schools in the city of Indianapolis will cause the introduction of the German language into the schools of the city as effectually and fully as if it had been petitioned for in each school by the requisite number of parents and guardians. We need not characterize a construction that leads to such a result.

Four years after the passage of this act providing for the introduction of German into the public schools, when petitioned for, the Legislature passed the act of March 3,1871, which is in force only in the city of Indianapolis.

By this act the control of the public schools, which prior to that time had devolved upon the school trustees, was^ transferred to the board of school commissioners. Among the other duties of their office they were authorized :

“First. To district the city for the purpose of electing school commissioners therein, and also to subdivide the city for general school purposes.

“ Seventh. To establish and enforce regulations for the grading of and course of instruction in the schools of the city, and for the government and discipline of such schools.” Section 4460, R. S. 1881.

Section 8 of this act (section 4463,R. S. 1881) continues in force within the city all of the general school laws of the State which are not inconsistent with the provisions of this act.

Among the general provisions of the school law thus continued in force is the following:

“ The persons listed in each of such towns and cities shall be considered as forming but single school districts therein, distinct from the townships in which they are situate.”

It is earnestly contended by.the appellants that, inasmuch as all the schools of a town or city form but a single school district, in which the school commissioners may assign the pupils to such school as they choose; and as they are given authority, in their discretion, to “ establish and enforce regillations for the grading of and course of instruction in the schools of the city,” they may determine in what schools,, and to what grades of the pupils the German language may be taught. We do not think that the act of 1871 either repeals or modifies the section of the act of 1869, under consideration. In fact we do not regard the provision authorizing the grading of the pupils as greatly enlarging the authority of the school officers in that respect. The power of the school commissioners to establish and enforce regulations for grading the schools, and regulating the course of study, must be exercised subject to the dominant law of the State. The grant of a power which is a mere permission, not a 'command, to grade the schools or establish a course of study can not be held to authorize the school commissioner to disregard a positive and specific law of the State.

While the city of Indianapolis does, for the purpose of the enumeration and listing of school children,and for many other purposes, constitute a single school district, it can hardly be said to have but one school. The mere statement of the proposition would seem to be sufficient. The act of 1871 authorizes the school commissioners to subdivide the city for general school purposes. The pleadings show that they have subdivided the city for school purposes, and erected school buildings in different parts of the city, and assigned pupils to, and numbered them as different schools. This makes them as effectually and distinctly different schools as those in a country township.

The appellants say in their answer that they have considered the subject of the study of German in connection with their resources, and that with their available resources they can not provide for the teaching of German for any greater length of time than seven years out of the twelve-year course.

We are of the opinion that the allegations contained in the answer showing want of funds are fully met by the reply. The answer shows that the appellants had on hands, unappropriated, over $40,000 more than would be required for tuition upon the system of grading and plan of employment of teachers as adopted by the board. The reply says that it will cost only $10,000 to provide for instruction in the German language wherever demanded. This is a complete reply to this portion of the answer. But the reply goes further and shows that in the estimated expense of running the schools, as set forth in the answer, there is included a sum in excess of $60,000 for teaching music, drawing, manual training, physical training, chemistry, physics, Greek, bookkeeping, geometry, English literature, general history, algebra, Latin, training school for teachers, civil government, rhetoric, and botany. None of these studies are named in the statute as required studies, but their teaching is provided for under the general direction for the teaching of “such.other branches of learning and other languages as the advancement of pupils may require and the trustees from time to time direct.” Under this statute we 'hold that it is incumbent upon the school authorities to provide for the teaching of those studies that are expressly named and provided for, and that they can not appropriate the school funds for the teaching of optional studies, and then osay that they can not comply with the requirements of the statute for want of funds.

We do not desire that this construction of this section of the statute shall be understood as a curtailment of the enlarged discretion given the board of school commissioners in the control, grading and management of the public schools, except in so far as it may be necessary to give full force and effect to the legislative enactment.

The board of school commissioners is a quasi corporation, possessing, by necessary implication, such powers as are or may be necessary to carry out the purpose for which it was created; but these powers must be exercised subject to the paramount laws of the State. With reference to the act under consideration, we are of the opinion that when the requisite demand is made it becomes the duty of the board of school commissioners to introduce the German language as a study into the particular school where it is demanded, and that upon their refusal they may be compelled by mandate to act in the matter ; that they have no discretion to refuse, but must act. When they have introduced the study, they are,while acting in good faith, and in the reasonable discharge of their official duties, the exclusive judges of the manner in which it is taught, and the extent to which it shall be studied, whether, for instance, by the teachers in charge of that school, or by some other efficient teacher, who gives instruction in a number of schools.

They are the judges who are to decide how much, or how little, instruction is given, provided it be taught simply as a branch of study. The statute says, in a manner so positive and emphatic that’ it can not be misunderstood, that the common schools of the State shall be taught in the English language, and any board of trustees, or school commissioners, or other school officer, who, under guise of the provisions of this act, should have a school taught in the German language, would be guilty of misappropriating the school funds, and become liable therefor on his official bond.

We are met by the argument that by this construction the German language, as a study, has an advantage over every other study, and that to do so is inexpedient and unjust. We did not enact this statute, and it is no part of our duty to pass upon its expediency. That was for the Legislature. Our duty is to construe, not to criticise.

We are not, however, apprehensive that the fears expressed in argument will be realized. We have no doubt but that the board of school commissioners, in its wisdom, will be able to devise means by which the law will be carried out in good faith, without serious interference with the grading of the schools.

We are, in this case, not called upon to decide, and do not decide, that the language shall be taught in each school room, and it would be improper to express an opinion upon that subject. Neither can we judicially take notice that the German language may not, like good behavior, which is one of the required studies, or like music or physical training, which are optional ones, be taught in any grade without interference with other studies.

Filed June 23, 1891.

In our opinion the court did not err in overruling the demurrer to the reply.

Judgment affirmed.