2 S.W.2d 654 | Ky. Ct. App. | 1928
Affirming.
There is a duly organized graded school district in Hardin county, known as the Glendale graded common school district, which, when this action was filed, was under the management of appellees and some of the defendants below, Harry Walker et al., as trustees, and within the confines of its boundary there is located and maintained by the Kentucky Baptist Children's Home, a charitable corporation organized under the provisions of section 879 of our present Statutes, a children's home, in which there have been gathered, exclusively from various points within the commonwealth, a number of children to be reared, provided for, and educated by the *830 charitable corporation, and at the time of the institution of this action there were in the home 221 of such inmates within the public school age. Practically all of them were qualified for entrance into only the primary grades of our public school system. The home was established in 1915, and began by acquiring the property theretofore owned and operated by an institution known as Lynnland College, and which has since been converted into the present home for orphan children, and the facilities for its maintenance have been considerably enlarged.
In 1919 its then manager, who was a man of considerable experience in the management of such institutions, and who is known in this record as "Daddy" Moore, entered into a verbal arrangement with the trustees of the school district whereby the latter agreed to furnish and pay the salaries of three teachers in the primary grades, and they taught the school for such grades in three rooms that the home agreed to, and did furnish and equip with heat, light, seats, and all other equipment for the teaching of such a school, the home being located some mile or more away from the site of the graded school building of the Glendale graded common school district; but it was a part of that agreement that any other child in the district who was entitled to receive instruction in such grades would be permitted to attend the schools being taught at the place and in the manner indicated. It was also agreed that the transportation of any pupils from the home who took any course of instruction furnished at the high school building would be transported by the home free of charge — in consideration for all of which the district was permitted to receive the state per capita for all of the students in the home, and an additional donation of $675, which for the scholastic year of 1926-27 was increased to $775. By this arrangement a small portion of trackage of the Louisville Nashville Railroad Company was brought into the district for the purposes of taxation, as was also the same mileage of telegraph and telephone lines with the franchise assessments for such aliquot portions of the lines. The state per capita received by the district under that arrangement for the last scholastic year mentioned, plus the taxes referred to, aggregated a sum amounting in round numbers to $3,400.
This equity action was filed by appellants and plaintiffs below, F.L. Crain, and two other citizens and taxpayers *831 residing in the school district, against its trustees and the charitable corporation that maintained the home in which it was sought to perpetually enjoin defendants from carrying out the above arrangement upon the grounds: (1) That the inmates of the home were not entitled to attend the schools of the district, because they were not residents therein; (2) that the corporate defendant had no right to continue to bring into the district the orphaned inmates of the institution and to demand or require for them the privilege of attending the public schools of the district; and (3) that the arrangement was in direct violation of the provisions of section 189 of the Constitution, saying:
"No portion of any fund or tax now existing or that may hereafter be raised or levied, for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school."
Appropriate pleadings made the issues, and, upon final submission, after evidence taken, the trial court dismissed the petition, and, complaining of it, plaintiffs prosecute this appeal. We will discuss and determine the three grounds in the order mentioned.
1. It is conceded that for the inmates of the home to be entitled to admission into the public schools within the district, they should be residents therein within the meaning of the statutes so prescribing. At the threshold it should be remembered that those whose residential status is involved are the orphaned inmates of the home, and who are the ones whose primary rights are to be affected by the solution of the question. There are a great number of relations in life wherein the question of one's residence is involved, and what might be held sufficient to solve it in one case might be insufficient in another. The question is also sometimes affected by the class to which the one affected belongs; as, for instance, an adult, or one who is of sufficient age to choose his residence, may do so in a different manner than a mere infant, who, on account of his youth, is incapable of exercising volition in that respect. In the latter case the universal rule is that the residence of an infant of tender years follows that of his parents or the one who has the legal custody of him, or of one who stands in the relation of loco parentis to him. *832
In regard to the first part of the above statement, one set of facts may constitute residence for the purpose of entry into public schools, while a different state of facts might be required to render one a resident so as to entitle him to exercise his right of suffrage, and yet another state of facts would be required for the purposes of levying taxes on personal property, and still another for the purpose of conferring jurisdiction for the probate of wills. Hence, where volition enters into the question, it is the general rule that intention, followed by acts and conduct in conformity therewith, will usually fix the place of one's residence; but such fact seldom, if at all, enters into the inquiry where the residence of an infant is involved. Moreover, the question of residence in a case like the one before us should not be confused with domicile, for it is a well-known principle of law that one may have a legal domicile at one place, and actually reside at another, with the intention of returning to his domicile when he ceases to reside at the other place. With these observations in mind, and keeping also in mind the purpose of the commonwealth in providing a free public school system so as that all children within its borders should have extended to them the opportunity of a limited free education, let us inquire what is the law with reference to a sufficient compliance with the statute to entitle a pupil within the free school age to attend a public school?
The text in 24 Rawle C. L. 624, par. 83, under the heading of "What Constitutes School Residence," starts out with the general statement that:
"In determining whether a person is or is not a resident in a school district within the meaning of such a rule (the statutory one requiring it) the usual and ordinary indicia of residence or the absence thereof should be the proper guide."
That text is supported by a reference in the note to the case of Board of Trustees of Stanford Graded School District v. Powell,
"Residence entitling an infant to school privileges is distinguished from domicile, or the technical and narrow use of the term 'residence,' for the *833 purpose of suffrage or other like purposes, and it is construed in a liberal sense as meaning to live in, or be an inhabitant of, a school district, the purpose being not to debar from school privileges any child of school age found within the district under the care, custody, or control of a resident thereof. Such rule does not usually require that there be a legal domicile, but it is sufficient if the child and its parent, or the person in loco parentis, are actually resident in the district, with apparently no present purpose of removal."
Further on, the compiler refers to a few cases from other courts holding that residence for school purposes is equivalent to domicile, and is to be supported by the same facts and the same legal principles. But the Powell case repudiates that doctrine, and expressly holds that "for school purposes a child's residence is not necessarily that of its parent or parents," and that, if it has assumed a permanent home with some other person standing in loco parentis to it, then the residence of the child for school purposes is the same as that of such person. The opinion in the Powell case distinguished it from the prior one of Board of Education of Winchester v. Foster,
It is shown by the record that no child is taken into the home unless both parents are dead, or one of them is dead, and the living one is in such indigent circumstances as to be unable to take care of and provide for it. In other words, the central purpose is the most laudable one of gathering up helpless waifs and rearing them with at least a modicum of the opportunities of life whereby they may become useful and valuable citizens, and their opportunities widened and enlarged. Without such services, their lives would be cramped in every way, and they, for the lack of opportunity, might become a menace, instead of an asset, to society. If the home should not undertake the task, then it would either devolve upon the county or state, or upon some charitably disposed individual; otherwise the child might sooner or later drift into ways and courses that lead to destruction. If, however, he should succeed in escaping the latter, he would still be deprived of the benefits of a good home, a moral atmosphere, and the foundation of an education.
Before any inmate is taken into the home, the one who has custody of it is required to relinquish in writing all control over the child, and confer it absolutely on the home; the latter agreeing to assume it, and to render the services enumerated, until the ward, if a female, is 18 years of age, or, if a male, 16 years of age, and to not then surrender its custody, unless the child becomes satisfactorily engaged or situated, and the watchfulness over it does not entirely cease until it arrives at the age of 21 years. Evidently the inmates are entitled to claim their residence as located at some place. They cannot be considered to be absolutely without one, and, if it is not located where the home is, and to which they have been relinquished in the manner indicated, then where, may we inquire, would their residence be? They are mostly, as we have stated, without parents, and possibly without relatives, and, in either event, they are without the means whereby the accommodations of such a home could be furnished. If it should be held, as is contended by plaintiffs, that their residence is at the place from whence they were taken, then it would be the duty of each school census enumerator to include them in the list for that particular district, and it would draw the per capita that the people throughout the state provided for the individual benefit of the orphans in the home, and they would lose all such benefits while living in and located at the home. They would thereby be deprived of the only *835 public fund that was provided solely for the purpose of educating them, and for no other reason than that of their misfortunes, which solely and alone created the necessity of providing a home for them. Surely it was never the intention of the Legislature for the statutes under which the free school system is maintained to receive any such interpretation.
It will, no doubt, be conceded by plaintiffs that, if some kindly and charitably disposed individual should adopt, or in any manner legally assume the duties and obligations of rearing a number of children, and furnishing them a home, and in every practical way assuming the position of parent towards them, such children, if otherwise entitled to attend the public schools, would become residents at the home of their benefactor so as to enable them to attend the local public schools, although he himself might be a pauper, and with no means of carrying his good intentions into execution, except a commendable determination and a sound body and mind. The imagined case is actually met with in life, and we can conceive of no reason for distinguishing it from a charitable corporation imbued with like purposes and prompted by like considerations.
But it is argued that the cases of Lake Farm v. School District,
In one of the Pennsylvania cases, supra, the charitable institution that maintained the home was supported entirely by public funds donated out of the public *836
treasury, and in the other one it was in a great measure so supported, and the court emphasized that fact, and largely rested its opinions upon it, and in doing so it reasoned that it was the intention of those making the appropriations for them to be the exclusive ones for such unfortunates, and not to allow them the additional educational privilege of also attending the free public schools. A late case dealing with the question is that of Independent Order of Odd Fellows of West Virginia v. Education Board, etc., of Elkins,
Great stress is made in briefs on the fact that the property of the home in this case is exempt from taxation, but the same was true in all of the cases referred to, and is almost universally the fact. Because thereof, it is argued that great hardship will be entailed on the taxpayers of the Glendale graded school district (but which the proven facts in this case demonstrate is untrue), and the West Virginia court, where it was also made, thus answered it:
*837"This may be so; but if so, relief must be obtained from the Legislature and not from the courts. The courts do not make our school law, nor do they determine the objects of taxation for school purposes."
Other cases sustaining the view herein expressed will be found in the annotation appended to the West Virginia case as reported in 48 A.L.R. beginning on page 1092; and the domestic one of Weller v. Muenninghoff,
2. What we have said in disposing of ground 1, in a large measure disposes of ground 2. Grave apprehension is manifested in briefs for plaintiffs that in the course of time there will be gathered in the school district by the Baptist Orphans' Home such a great number of inmates as to greatly and unnecessarily burden the taxpayers of the district, and to disastrously operate upon the maintenance of its schools; but that apprehension is rendered less alarming by the payment to the district of each pupil's pro rata of the state public school funds, as is demonstrated by the proven facts in this case. The expenses of the district in carrying out the arrangement sought to be enjoined is shown to be in the neighborhood of $1,900, when the increased income to the district thereby, as we have seen, is about $3,400, thereby creating a surplus to be expended by the school trustees for the benefit of the schools. It would, perhaps, not be proper, however, to give that fact legal weight in arriving at our conclusion, but it does demonstrate that plaintiffs and those whom they represent are not detrimentally affected by the arrangement. Whatever may be the eventual result of such apprehension, if it should *838 finally occur, it would present a situation to be then dealt with, and which, no doubt, would be solved so as to do justice to all concerned. It is sufficient for our present purposes to say that no such situation is presented.
3. In support of this ground, chief reliance is had upon the domestic case of Williams v. Board of Trustees of Stanton Graded School District,
"The evidence further conduces to show that the teachers and pupils of the graded school conducted in the college building are really as much under the control of Mr. Hanley (the head of the denominational school) as the teachers and pupils of Stanton College; that the graded common school trustees have virtually surrendered to Mr. Hanley all control over the conduct and management of the graded school; that the two graded school teachers, although nominally contracted with by the graded *839 school trustees and paid out of the common school fund, were really selected by Mr. Hanley. . . . And if the arrangement between Stanton College and the graded school should be subjected to the scrutiny of this not too comprehensive or rigid test, the evidence makes it plain that it was of such a nature as to reasonably create the belief that the graded school trustees had abdicated all control and authority over the graded school and delivered its conduct entirely to Mr. Hanley, the head of the sectarian institution."
If the facts herein measured up to those contained in the excerpt from that opinion, the only course would be to sustain this ground, and grant the relief prayed for in the petition. But we have no such facts in this case, nor any approaching thereto. The Baptist Orphans' Home has no voice in the employment of any of the teachers of the graded school district, nor are any of them required to be members of the Baptist religious denomination or any other church. No control of any character is exercised over them by the officers, superintendents, or managers of the home. As a matter of fact, only one of the three teachers of the primary grades taught in the rooms furnished by the home is a member of the Baptist Church, the other two being members of the Christian Church. No requirement is made that any inmate of the home shall receive sectarian instruction or be taught any creed of any religious denomination; nor are the inmates required to be children of Baptist parentage — all of which widens the gulf separating the facts of the Williams case from those in this one.
Because of such difference, of facts, the conclusions therein reached find no application here, since prior announced legal principles are only valuable as precedents when similar states of fact are involved. It was never intended by the section of the Constitution, supra, to withhold the right to teach public schools in buildings rented, or their use otherwise acquired, from others, if the circumstances justified it, although the building may be owned by a particular religious denomination. The vice sought to be prevented by the constitutional provision was the teaching of religious sectarianism in schools maintained by public funds, and which it is indisputably *840 shown was not true in this case, but which was true in the relied on Williams case. We therefore conclude that this ground is also without merit.
Wherefore the judgment is affirmed. The whole court sitting.