143 S.E. 111 | W. Va. | 1928
Having overruled the demurrer to, and motion to quash the alternative writ of mandamus, the trial court certified its ruling for review.
The petition and alternative writ as amended, in substance, says that relator, M. T. Gissy, is a citizen and taxpayer of Freeman's Creek District of Lewis county, and the father of Francis and Regina Gissy who have completed the course of study in the elementary schools of said district; that said district does not maintain a high school, nor assist in the maintenance of a county high school; that his two children, Francis and Regina, have been sent to St. Patrick's Parochial High School in the city of Weston, in said county, a school of high school grade; that Francis Gissy has attended said school from September, 1923, to June, 1924, his tuition for that time amounting to $30.00; that Francis and Regina have attended said school from September, 1926, to March, 1927, inclusive, and their tuition therein has amounted to $70.00; that he was told by the president of respondent board of education before entering his two children in said school that the board paid tuition of pupils attending high schools or schools of high school grade; that the principal of said Parochial School (said school having no board or president of a board controlling it), has presented certificates to the respondent giving the names of said children and the number of months each was in attendance, said certificates being rendered at the end of each month; that respondent has declined to pay and has not paid the tuition on the alleged ground that the board cannot pay tuition for pupils attending a private school; and that the board has paid and does pay the tuition of pupils, similarly situated, attending the high school at Weston; and prays for mandamus to compel the payment of said tuition to the parochial school.
The demurrer and motion to quash is to the effect that the board is without authority to pay tuition for high school *431 students who attend private schools, and the parochial school being a private school and not supported by tax levies, the statute does not authorize the board to pay the sums demanded. The court certified that the demurrant assigned and relied upon the proposition that: "The said alternative writ of mandamus does not show that St. Patrick's Parochial High School is such a school as said board of education can, or is required to pay tuition fees of pupils attending said school; that before the said board of education can pay fees in St. Patrick's Parochial High School it must appear that said school is under the supervision of the State Board of Education, or at least that said school is recognized by the State Board of Education as a school of high grade and suitable for high school pupils to attend, and said alternative writ does not show these facts."
The correctness of the court's ruling depends upon the construction and interpretation of the statute, if it needs construction. The statute which governs is sec. 81, of chap. 45, of the Code, as amended by sec. 81, of chap.
The question raised by the demurrer and certified for review may be divided into two parts; (1) can the board pay tuition of pupils from its district in attendance at private schools of high school grade, unless the private school be *432 under the supervision of the State Board of Education; and (2) should the alternative writ allege that the State Board of Education has recognized the private school as of high school grade suitable for attendance of high school pupils?
The act in terms says that the board shall pay tuition for its pupils when they leave the district and attend some public high school in another district or county, or other school of high school grade within the state. "Other schools of high school grade within the state" can have no other meaning than private schools of high school grade, for all public schools of high school grade are designated as high schools, and are classified as such under the school law. Note that the statute says they shall have their tuition paid if they attend apublic high school, or other school of high school grade. There are two classes of schools which they may attend, public or private, the only qualification being that the private school (other school) shall be of high school grade, and that these schools, public and private, shall be within the state. There is nothing in the statute which requires the "other school" to be under the supervision of the State Board of Education. There is an act which requires public, private, parochial and denominational schools in this state to give regular courses in history of the United States, in civics, and in the constitutions of this state and the United States for the purpose of teaching, fostering and perpetuating the ideals, principles and spirit of Americanism, and requiring the State Board of Education and state superintendent to prescribe courses of study covering these subjects for the public, elementary, grammar, high and normal schools, and requiring the officers and boards of private parochial and denominational schools to prescribe similar courses of study for their schools, and providing penalties for violation of the act. But the State Board of Education has no supervision over schools other than public schools; there is no act which gives it that power or jurisdiction. If such was the case, the school over which it took jurisdiction or control would scarcely be private. It has no inherent right to classify private or denominational schools or meddle in their affairs. It may be that such power could be given it by the legislature, (a question not necessary to *433
decide), but the legislature has not acted; and the right of pupils who have completed the courses of elementary training in the public schools of a district which does not maintain a high school or assist in maintaining a county high school, to have their tuition paid by the district when they attend some public high school or other school of high school grade anywere within the state, is unqualified in that regard. No power is given the Board of Education of any state officer, either direct or by implication, which authorizes it to declare what particular school the pupils shall attend, whether public or private, or in what part of the state. The board's liability is limited in the amount it is required to pay, whether the school be far or near. It was suggested in argument and conference that preference of schools should be given to the public schools, and the writ should state that there was no public high school which the relator's children could conveniently enter. If that proposition be tenable the statute would serve no useful purpose, for it is common knowledge that high schools exist in practically every county in the state. There would always be a public high school available. There is nothing in the statute which gives the board dictation of the choice of schools. The only limitation is that the school attended shall be a public high school, or other school of high school grade in the state. Where an act is expressed in clear and precise terms, as the one under consideration, and the sense is manifest, there can be no reason to substitute a meaning or surmise or guess about it. Kelly v. Bowman,
The able trial judge pointed out that classification of high schools by state officials pertained to public schools, and where the State Board of Education prescribes standards of the course of study the schools so prescribed for received state aid in whole or in part under sec. 9, chap. 45, Code.
The ruling of the trial court is
Affirmed.