Hurley v. Media Twp. School District , 63 S.D. 194 ( 1934 )

Media township school district, the defendant in this action, contains four schools. At the annual election, the electors by a vote of 49 to 6 voted to close the Schubert School for the school year 1933-34 and to allocate its six pupils to the other three schools in the district. In July, 1933, the school board in regular session went on record as closing said school, and on July 14, 1933, a petition signed by four of the patrons of the Schubert School was filed with the county superintendent of schools, requesting that said school remain open, and also enumerated their reasons for wanting the school kept open. A hearing was had before said superintendent on the petition, and all the school board members of Media township and all the patrons of the school were present. The county superintendent of schools reversed the action of the school board in closing the school on July 24, 1933, and notice of said decision was mailed to each board member. No appeal was taken from said decision. The school board did not recognize the authority claimed by the county superintendent in the premises and did not hire a teacher for the school, whereupon, on October 1, 1933, the state superintendent of public instruction, treating the case as one where a school board has failed or neglected to engage a duly certified teacher for a school and purporting to act under section 231, c. 138, Laws 1931, instructed the county superintendent of Jerauld county to contract with a qualified teacher for the Schubert School. Thereupon, on October 4, 1933, said county superintendent did so contract with Verna Hurley, the plaintiff, who was admittedly a qualified teacher, to conduct said school for a term of eight school months commencing October 4, 1933, at the rate of $40 per month, and in December, 1933, Verna Hurley instituted the present action against the school district to recover the sum of $80 as her salary for October and November pursuant to the terms of the contract thus awarded her by the county superintendent. The court having entered a judgment in favor of the plaintiff, the defendant has appealed.

[1, 2] Section 261 c. 138, Laws 1931, reads as follows: "A school may be discontinued by the school board provided proper arrangements are made for the schooling at public schools of the pupils who would ordinarily be in attendance at the school were it not discontinued."

Section 262 of the same act provides for an appeal to the county superintendent of schools "whenever any school in a common school district is discontinued under the preceding section. * * *" (Incidentally it may be noted that section 262 provides that the decision of the county superintendent in the matter shall be final, which seems not entirely consistent with the provisions of section 81 of the same law.)

It seems quite clear from the language of section 262 that appeals thereunder are limited to the cases where the discontinuance is "under the preceding section." It seems quite plain also that section 261 refers to the discontinuance of a school "by a school board"; that is, where the discontinuance is of the board's volition and where, in truth and in fact, the board is exercising its powers, judgment, and discretion as a board.

From the record before us, it appears that arrangements had been made to take care of the children who would have attended the school if other arrangements had not been made.

[3] Appellant contends that section 124, c. 138, Laws 1931, permits the electors to take such action, and that the school board was bound to take affirmative action to carry out the instructions of the electors. An examination of said section 124, c. 138, Laws 1931, clearly indicates that the electors shall have the authority to instruct the board in matters pertaining to the management of the schools for the coming year and may instruct the board pertaining to the branches to be taught, time at which the schools of the district shall be held, amount of tax levy, the repair of buildings and fixtures, and other duties as specifically expressed therein, and it further provides: "* * * And upon any other subject pertaining to the schools; and it shall be the duty of the district board to carry into execution as speedily as possible all such instructions that have received a majority vote of the electors of the district present at the meeting." Clearly the closing of a school is embraced within the statute and may be considered as one of the elements and matters upon which the electors may instruct the board under the language, "* * * and upon any other subject pertaining to the schools."

The Legislature undoubtedly used the language, "at the annual common school district election the electors shall have the authority to instruct the board in matters pertaining to the management of the schools for the coming year," and "upon any other subject pertaining to the schools," to give the electors the broadest possible powers. It is difficult to conceive of any stronger language to accomplish such a purpose than that used by the Legislature. Respondent argues that the statute does not cover specifically the closing of a school, and that force and effect must be given to another portion of the section which provides: "* * * Provided further that nothing contained herein shall prevent the district board from exercising sound discretion as to all matters pertaining to its duties not expressly provided for by law. * * *" We are unable to place such a construction upon the statute before us. The statute giving the electors authority to instruct the board seems to us mandatory. The electors are given the authority to instruct the board upon certain matters, and the word "instruct" as used in this statute is not used in the sense that the action of the electors shall be advisory to the board only. Instruct as used in this statute cannot be construed to mean advise; but must be construed to mean, as defined in the Century Dictionary, "to direct or command, furnish with orders or directions"; or, as defined by the Standard Dictionary, "to furnish with specific orders, give orders or directions to; command; as to instruct a servant or agent." We believe that the Legislature intended to and did use the word "instruct" in its mandatory form, and that they did not mean to have the electors merely advise the board. The present situation is comparable to the construction placed upon the words "instruct" and "advise" by the Supreme Court of Idaho in State v. Downing, 23 Idaho 540, 130 P. 461, 462, where they said: "The Legislature in using the word ``advise' in said section, evidently intended to give it a different meaning from that which is generally given to the word ``instruct.' The generally accepted meaning of the word ``instruct,' when applied to courts, means a direction that is to be obeyed; while, under the meaning given to the word ``advise,' it is left optional with the person advised as to whether he will act on such advice or not."

See, also, Waldroop v. Waldroop et al, 179 N.C. 674,103 S.E. 381, 382, in which the court construed the word "instruct" as being imperative as used in a last will and testament by the testator in which he used the words, "I instruct her hereby to give each of them," etc., and not merely directory or advisory.

[4] The electors having the authority to instruct the board upon any other subject pertaining to the schools and having availed themselves of the opportunity by giving such instructions, the district board was precluded from exercising its sound discretion thereafter. To give the construction to the statute suggested by the respondent, it would necessarily follow that the electors would be deprived of the power and authority which they had been vested with in the forepart of the section. It would therefore seem foolish to strip the electors of the powers conferred upon them by placing emphasis upon the provision of the statute giving the district board the power to exercise sound discretion as to all matters pertaining to its duties not expressly provided for. We do not believe that the Legislature had in mind, when adding said clause, to completely destroy the statute conferring the broad powers upon the electors by the term "and upon any other subject pertaining to schools." It seems to us that the sound discretion upon all matters pertaining to the duties of the district board expressed by the statute may be given force and effect by stating that the board shall exercise all duties which the electors have not specifically instructed and directed to be done in the meeting held by the electors for that purpose.

[5] After the electors had instructed the board relative to closing the Schubert School by a vote of 49 in favor of closing to 6 against closing, the district board by its action at its regular annual board meeting held July 11, 1933, put into effect the mandate of the electors declaring the Schubert School closed, and distributed the children that otherwise would have attended the Schubert School among the other schools of the district. It seems quite clear that the Legislature in its control and power over our schools decided to place the authority to discontinue schools first in the majority of electors within the district and second with the school board.

There can be no question as to the power of the Legislature under our Constitution to invest the electors and the school board with such power, for the state has power, for its own protection, to require children to be educated.

[6] The respondent under the facts contained in the record before us did not receive such a contract of employment as is contemplated by statute, and would therefore not be entitled to a recovery against the appellant for the services rendered.

The judgment and order appealed from are reversed and the cause remanded, with directions to make conclusions and enter judgment for defendants upon the present findings.

POLLEY, CAMPBELL, and RUDOLPH, JJ., concur.