66 Mo. 286 | Mo. | 1877
Lead Opinion
— The cause was commenced and final judgment entered upon demurrer to second amended petition in the circuit court of Moniteau county, Missouri. The record consists of the second amended petition, the separate demurrer of Snodgrass and Redmond, and the separate demurrer of Frederick, and the judgment of the court upon the demurrers.
The petition avers that Joseph E. Dritt is a minor, under "21 years of age — that John B. Dritt was appointed his next friend by the clerk of the circuit court of said county; hence this suit is prosecuted to the use of Joseph E. Dritt, by his next friend, John B. Dritt. The petition further avers that prior to the accruing of plaintiff’s cause of action the town of Tipton, in said county, had been duly incorporated, and a plat thereof filed and duly recorded in the recorder’s office of said county; and that prior to the accruing of plaintiff’s cause of action, by virtue of the laws of the State of Missouri authorizing cities, towns and villages to organize for school purposes, the said town of Tipton was organized as a single school district, and that it has been to this date an acting organization as such; that on, to-wit, the 20th day of January, 1875, and fora long time prior and since that date, the defendants, Isaac Snodgrass and "William Redmond, together with four other persons, each of whom, then being citizens and electors
The grounds of demurrer are, for Snodgrass and Redmond :
1st. Petition does not state facts sufficient to constitute a cause of action.
3rd. Because it appears upon the face of the petition ■ that the plaintiff has not legal capacity to sue by attorney, and he does not appear by next friend.
Grounds off demurrer on the part of Frederick:
1st. Petition .does not state facts sufficient to constitute a cause of action against defendant.
2nd. It appears upon the face of said petition that the defendant was the teacher in the public school in the town of Tipton, employed by the board of education of said town, and as a matter of law he is not liable to plaintiff upon the facts stated in the petition — said school being under the .control and management of the board of education, and not of himself.
3rd. It appears upon the face of the petition that plaintiff has not legal capacity to sue by attorney, and he does not appear by next friend.
The court sustained each of said demurrers, and entered up final judgment thereon against the plaintiff for costs; whereupon the plaintiff brings the cause to this court by writ of error.
By Sec. 8, Wagner’s Stat., page 1264, it is provided, that the board of directors “ shall have power to make and enforce all needful rules and regulations for. the government, management and control of such schools and pi’operty, as they shall think proper, so that the same shall not be inconsistent with the laws of the land; and, generally, to do all lawful acts which may be proper and necessary to carry fully into effect the purposes of the act.” It appears, in this case, from the petition, that the directors had made a rule for the government of said school, prohibiting its pupils from attending social parties; that the plaintiff
School directors are elected by the people, receive no compensation for their services, are not always, or frequently, men who are thoroughly inforihed as to the best modes of conducting schools. They are authorized, and it is their duty to adopt reasonable rules for the government and management of the school, and it would deter responsible and suitable men from accepting the position, if held liable for damages to a pupil expelled under a rule adopted by them, under the impression that the welfare of the school demanded it, if the courts should deem it improper. They are to determine what rules are proper, and who shall say that the rule adopted in this casé was harsh and oppressive ? I might think it was ; wiser men would maintain that it was proper and right, that pupils attending social paifies are liable to have their minds drawn off from their studies, and thus to be retarded in their progress ; but whether the rule was a wise one or not, the directors and teacher are not liable to an action for damages for enforcing it — even to the expulsion of a pupil who violates it. While this court might, on mandamus to compel the board and teacher to admit a pupil thus expelled, review the action of the board, and pass upon the reasonableness of the rule, which we do not, however, decide here, yet the doctrine that the courts could do this, is very different from that which would hold the directors liable in an action for damages for enforcing a rule honestly adopted for the maintenance of discipline in the school.. That such an action is not maintainable, is fully established by Donahoe v. Richards, 38 Me. 391; Spear v. Cummings, 23 Pick.
Morton, J.,- speaking for the court, said: “ This general power, (to superintend schools, &e.,) by necessary implication, includes the power to make all reasonable rules aud regulations for the discipline, government and management of the schools, and also the power to exclude a child from school for sufficient cause. And when a scholar is guilty of misconduct, which injuriously affects the discipline and management of the school, we think the law vests in the school committee the power of determining whether the welfare of the school requires his expulsion.” Again, he said: “ He was guilty of acts of misconduct, which, if persisted in, it is clear might seriously interfere with the disciplixxe, and impair the usefulxxess of the school. Whether they had such an effect upon the' welfare of the school as to require his expulsion, was a question for the committee, and upon which their action is conclusive.”
The case of Morrow v. Wood, 35 Wis. 61, involved no principle in question here. It was an action for malicious prosecution, by a teacher, agaixxst the parent of a pupil whom she had flogged for having her ax*rested for axi assault and battexy upoxx the child. The court held that the assault and battexy was unjustifiable, axxd that, therefore, she could not maintain her actioxx. Certain studies are required to be taught ixx the pxxblic schools of that State by statute, bxxt the court held, as a matter of law, that the father “ had a right to make a reasoxxable selection from the prescribed studies for his child to pursue, and this can not possibly conflict with the equal rights of other pupils.” There the father desired his child not to study geography.
In Dinsman v. Wilkes, 12 Howard 404, Ch. J. Taney, delivering the opinion of the court, said: “ But the fact to be ascertained in this case is whether, in the exercise of that discretion and judgment with which the law clothed him for the time, and which is in the nature of a judicial discretion, he acted from improper feelings, and abused the power confided to him, to the injury of the plaintiff'.”
In Weaver v. Devendorf, 3 Denio 118, plaintiff sued a board of assessors for refusing to make an allowance or deduction in assessing his property, he being a minister, and because his property was assessed at a higher rate than that of others. The court held that the action would not lie, and Beardsly, J., said: “ This case might be disposed of on narrow ground, for there was no evidence to justify the conclusion that the defendants acted maliciously in fixing the value of the property of the plaintiff, or of anyone else; and surely it will not be pretended that they were liable for a mere error of judgment. But I prefer to place the decision on the broad ground that no public officer is responsible, in a civil suit, for a judicial determination, however erroneous it may be, and however malicious the motive which produced it.”
We extract copiously from these cases because they are cited by plaintiff’s counsel as sustaining their view,
The petition alleges that the defendants illegally, wrongfully, oppressively, willfully and maliciously, expelled the plaintiff, and then proceeds to state the circumstances under which the expulsion took place, viz : the existence of the rule, and plaintiff’s violation of it. The adoption of the rule is not alleged to have been prompted by malice, and if the plaintiff violated the rule, it matters not what may have been the feelings of the defendants toward him, if they enforced it in the usual and ordinary way, and the contrary is not alleged. While malice is alleged, the facts stated in the petition show that there was no such malice as gave plaintiff a cause of action against defendants for his expulsion.
We are not to be understood as holding that a board could not adopt a rule for the enforcement of which they would be liable for damages. If they should declare that for certain misconduct the teacher should inflict upon the bare back of the pupil thirty-nine lashes, well laid on, or any other rule palpably unreasonable and unauthorized, they probably could not shield themselves against an action for damages by a pupil, under the power given them to adopt reasonable rules for the government of the school. But even this we will not now decide, for “ sufficient unto the day is the evil thereof.”
The judgment is affirmed.
Affirmed.
Concurrence Opinion
Concurring. — The directors of a school district are invested with the power and authority to make and execute all needful rules and regulations for the government, management and control of such' school as they may think proper, not inconsistent with the laws of the
It certainly could not have been the design of the Legislature to take from the parent the control of his child while not at school, and invest it in a board of directors or teacher of a school. If they can prescribe a rule which denies to the parent the right to allow his child to attend a social gathering, except upon pain of expulsion from a school which the law gives him the right to attend, may they not prescribe a rule which would forbid the parent from allowing the child to attend a particular church, or any church at all, and thus step in loco parentis and supersede entirely parental authority? For.offenses committed by the scholar while at school, he is amenable to the laws of the school; when not at school, but under the charge of the parent or guardian, he is answerable alone to him.
A person teaching a private school may say upon what terms he or she will accept scholars, and may demand, before receiving a scholar to he taught, that the parents shall surrender so much of his or her parental authority as not to allow the scholar, during the term, to attend social parties, balls, theaters, &c., except on pain of expulsion. This would be a matter of contract, and no
This is not so in regard to public schools, which every child within school age has a right, under the law, to attend, subject while so attending to be governed by such needful' rules as may be prescribed. "When the school room is entered by the pupil, the authority of the parent ceases, and that of the teacher begins ; when sent to his home, the authority of the teacher ends, and that of the parent is resumed. Por his conduct when at school, he may be punished or even expelled, under proper circumstances'; for his conduct when at home, he is subject to domestic-control. The directors, in prescribing the rule that scholai’s who attended a social party should be expelled from school, went beyond their power, and invaded the right of the parent to govern the conduct of his child, when solely under his charge. .
My concurrence in the above opinion is based upon the sole ground that malice, oppression and willfulness on the part of the defendants are not sufficiently charged in the petition.