Board of Education v. Welch

51 Kan. 792

• Court: Supreme Court of Kansas
• Decided: July 15, 1893
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

The application to prohibit the issuance of $85,000 of 4-per-cent. 20-year bonds by the board of education of the city of Topeka, recently made to the district court of Shawnee county, after a full hearing, was denied. That judgment, until reversed, modified, or suspended, is conclusive; but it appears that the bonds about to be issued have been sold to the commissioners of the state school fund, and it is important that their legality be settled by this court. In view of the lengthy opinion handed down by the learned trial judge in the case disposed of in the district court of Shawnee county, it is unnecessary to refer to all of the objections presented against the issuance of the bonds. An election was held in the city of Topeka on March 7, 1893, for the purpose of voting on a proposition to purchase a site and erect a high-school building, not to exceed $85,000. On March 10, 1893, at 8 o’clock p. m., the city council met for the purpose of canvassing the returns of the election, but no quorum being present, the council adjourned without day. On March 15, 1893, in accordance with a call of the mayor of the city of Topeka, at the request of the board of education of the city, the city council again convened, at 7:30 o’clock p. M., for the purpose of canvassing the returns of the special election and declaring the result thereof. After the canvass, it was declared that 2,549 votes were cast in the city for the issuance of the school bonds, and 1,560 against the bonds, and that the proposition for the issuance of the bonds received a majority of 989 votes. On the 17th day of March, 1893, the board of education of the city of Topeka convened, and, having received from the city clerk duplicate returns of the election, proceeded to canvass and declare the result. Its canvass was the same as previously declared by the mayor and city council. The election was held and the bonds voted under chapter 196, Laws of 1891, the title of which reads: “An act for the regulation, support and maintenance of the common schools in cities of the first class, and repealing certain other acts.” The principal contention is, that under the provisions of chapter 196, cities of the first class have no authority to purchase a school site or build a school building for a high school; that such a school is not connected with or a part of “a uniform system of common schools” provided for by § 2, article 6, of the state constitution. That section is as follows:

“The legislature shall encourage the promotion of intellectual, moral, scientific and agricultural improvement, by establishing a uniform system of common schools, and schools of a higher grade, embracing normal, preparatory, collegiate, and university departments.”

The board of education of the city of Topeka has established a course of instruction in the common or public schools of the city, subdivided into 12 years or grades. The first four years or grades in the course of instruction are kept and maintained in 21 buildings, and are known as the “primary department;” the fifth and sixth years or grades are taught in 16 buildings, and are known as the “intermediate department;” the seventh and eighth years or grades are in six buildings, known as the “grammar-school department.” The scholars in the ninth, tenth, eleventh and twelfth years or grades assemble in a building known as the “high school,” presided over by a principal selected by the board of education. At present, the board of education does not own sufficient buildings to accommodate all the school children, and* since 1887, has been compelled to rent a building for the exclusive use of the grades generally known as the “high school.” Paragraph 5634 of the general school law provides;

“That in each and every school district shall be taught orthography, reading, writing, English grammar, geography, and arithmetic, and such other branches as may be determined by the district board: Provided, That the instructions given in the several branches taught shall be in the English language.”

i Board of educaofcorporatese functions. The corporate functions of the board of education of a city of the first class are granted by the state to assist in carrying outl general common-school system adopted by the state. (Laws of 1876, ch. 122, art. 10; Laws 0f 1881, ch. 149, §§ 1, 2; Laws of 1885, ch. 100, §1; Laws of 1891, ch. 196; Knowles v. Board of Education, 33 Kas. 700.)

In the last case it was remarked that

“The board of education of the city of Topeka has power to select its own officers, to make its rules and regulations, to establish a high school whenever in its opinion the educational interests of the city demand the same, and to exercise sole control over the public schools and school property of the city.”

(See Board of Education of Cincinnati v. Minor, 23 Ohio St. 211; McCormick v. Burt, 95 Ill. 263; Stuart v. School District, 30 Mich. 69; High School v. County of Clayton, 9 Iowa, 177.)

In the statute of 1876, entitled “An act for the regulation and support of common schools,” it is expressly provided “that the board of education shall have power to establish a high school whenever in their opinion the educational interests of the city demand the same.” (Laws of 1876, ch. 122, art. 10, § 4.) In that act, although the title refers to “common schools,” the legislature includes “high schools” as a part of the “uniform system of common schools.”

In the statute of 1879, concerning boards of education of cities of the first class, it is provided that such boards may “ organize and maintain separate schools for the education of white and colored children, except in the high school, where no discrimination shall be made on account of color.” (Laws of 1879, ch. 81, §1; Gen. Stat. of 1889, ¶ 5715.) High schools are treated in that statute as under the control of the boards of education. In the high school of the city of Topeka, there are taught, among other branches, mathematics, physics, history, English classics, rhetorical exercises, vocal training, physical culture, Latin, and German. An education acquired through the medium of the English language is an English education. If the same branches were taught in the Latin or the German language, it would not be an English education; but the mere fact that the Latin and German languages are taught does not change the character of the school from an English one. The common-school medium of instruction is the English language, in accordance with the provisions of the statute. (Powell v. Board of Education, 97 Ill. 375.)

2' powers.ionary

s' ousgradeI.arl" While the school law prescribes that certain branches shall be taught in the common schools of the state, it permits “other branches” to be taught, as may be determined by the the district boards. Boards of education of cities of the first class have the power to make rules and regulations concerning the public schools in the cities, subject to the provisions of the laws of the state. The statute is permissive authority for the various boards of education of the state to teach in the common schools the higher branches, including Latin and the modern languages. The boards should exercise their best judgment, keeping always in view the highest good of the public schools. Under our liberal and beneficent system of common schools, we perceive no good reason why the higher branches prescribed by the board of education of the city of Topeka may not in its discretion be taught in the public schools, and no good reason why scholars desiring to be instructed such branches may not be provided with a separate school building, properly furnished, whether it be called a public school, a graded school, or a high school.

4' Sufnftonas.' The legislature, within the terms of the constitution, has established a system of common schools. High schools are referred to as a part of the system. Under the provisions of chapter 196, Laws of 1891, if certain preliminary proceedings are taken by boards of education, the qualified electors may vote bonds for the purchase of school sites and the construction of school buildings. Whether the school buildings proposed to be constructed and voted for shall be called a graded school or a high school is immaterial, if, under the control of the board of education, it is carried on in accordance with the statute concerning common schools. Of course, the legislature, under the constitution, has full authority to provide for the establishment of schools of the highest grade, such as embrace normal, preparatory, collegiate and university departments; but this does not forbid the legislature from establishing common schools having graded, or high-school departments.

It was remarked in the opinion in Koester v. Comm’rs of Atchison Co., 44 Kas. 141, by Strang, C., that the high schools authorized by chapter 147, Laws of 1886, “are schools of a higher grade than district or common schools,” and it is insisted that that decision is conclusive against the power of a board of education of a city of the first class from organizing a high-scbool department as a part of the common or public schools of a city. The county high school, permitted to be established under that statute by every county having a population of over 6,000 inhabitants, may be considered “schools of a higher grade than district or common schools.” But the decision in that case was not rendered solely upon the ground that such a school is of a higher grade. It was determined in the case that, if it were a school of a higher grade, it was especially authorized by the constitution of the state; but if it were not so, then that the constitution did not forbid the establishment of such a school by the legislature. County high schools, provided for in that statute, are expressly established for the purpose “of affording better educational facilities for pupils more advanced than those attending district schools, and for persons who desire to fit themselves for the vocation of teaching.” The board of education of cities of the first class are compelled to prescribe as studies in the common schools reading, writing, arithmetic, geography, etc., but may also in their discretion prescribe “other branches” to be taught. The other branches, as we have stated, may include the “higher branches,” but not necessarily so. In the county high schools for “ better educational facilities than the district schools,” the higher branches must necessarily be required in order to carry out the purpose of the legislature. There is nothing whatever in that decision preventing the board of education of a city from providing for the teaching of the higher branches in the common or public schools under their control, or from classifying the school children or scholars into various departments and permitting such departments to be taught in separate rooms or buildings, whether they be known as the primary, the intermediate, the grammar or the high-school department. If all such grades or departments are maintained and regulated in accordance with the provisions of the statute as common or public schools, they are necessarily a part of the common-school system of the state.

5 Eiect on councirtocanvass votes. Another objection to the exercise of the power to issue the bonds is, that chapter 196 of the Laws of 1891 is so vague and incomplete as to be inoperative, because it does not provide for any canvass of the returns of the election. The returns were canvassed in accordance with the laws of the state and the ordinances of the city, except that, there being no quorum of the city council present on the Friday succeeding the election, the council was, on the call of the mayor for that purpose, convened a few days later, and then canvassed the returns. The .territory controlled by the board of education of the city of Topeka for school purposes embraces the same territory as the corporation of the city of Topeka, and we are inclined to the opinion that the mayor and council of the city, under the ordinances of the city providing for canvassing the returns of all special or general elections held within the city, had ample authority to meet and canvass the returns of the election held upon the proposition to issue the bonds for the high school. This, however, was supplemented by the canvass of the board of education.

6' °oa7a-m* its duties. There is nothing whatever in the objection that, as no quorum of the city council was present on March 10, 1893, the adjournment without date rendered the city council as a canvassing board functus officio. It has been decided by this court, time and time again, that the courts have jurisdiction in mandamus to control a canvassing board, “whether the board be a township, a city, a county or a state board,” if the board wrongfully neglects or refuses to canvass all the returns present. Again, if a canvassing board has wrongfully or improperly adjourned sine die without performing its duty, the courts may compel it to reassemble and make a correct canvass of all the returns before it. A writ of mandamus is only issued to compel the perform-ill i , r • anee of an act which the law enjoins as a duty. (Lewis v. Comm’rs of Marshall Co., 16 Kas. 102; Rosenthal v. State Board of Canvassers, 50 id. 129; In re Gunn, Petitioner, 50 id. 155.)

As there was no quorum of the city council on March 10, 1893, when it met for the purpose of canvassing the returns of the election, the council might have adjourned to some subsequent time to complete the canvass; but as it adjourned without day, and without performing any of its duties, the mayor had authority to call a meeting of the council, and that body, in the performance of its duty, notwithstanding its former adjournment, had the power to canvass the returns and declare the result.

All the other objections to the issuance of the' bonds have been considered, but overruled.

The peremptory writ of mandamus will be issued as prayed for. The judgment will carry costs.

All the Justices concurring.