The statute is peremptory, that no person shall be employed or paid for services as teacher until he shall produce and deliver to the prudential committee a certificate of the school committee of the town that he is qualified to instruct in the branches to be taught in the school which he is employed to teach. G. c. 89, s. 6. This requirement of the statute neither the district nor the prudential committee can waive. Barr v. Deniston, 19 N.H. 170. It does not necessarily follow, however, that the plaintiff can recover by reason of what transpired at the time of the affray. The defendant was keeping a school in the school-house of the district. He sustained to the other occupants of the house the relation of teacher, and they to him that of scholars. The daily assemblage in the school-house for nearly two weeks prior to the alleged assault was not an unlawful meeting. The defendant was occupied in the useful and highly honorable employment of giving instruction to the youth of the district. If the instruction must be held to have been given gratuitously because the school committee of the town neglected to examine him as to his qualifications and give him the proper certificate when he presented himself for examination, the business in which he was engaged was none the less useful or honorable, nor was it made thereby illegal. He was in the occupation of the school-house for the purpose of giving instruction to the scholars of the district, with the unrevoked license of the district and of its inhabitants. Although not a public teacher by legal appointment, he was a teacher in fact, and his authority to govern the school could not be contested by those who sought to avail themselves of its advantages. By placing their children under his instruction, parents, for the time being, invested him with the prerogatives of school government, and conferred upon him the power to do what was reasonably necessary to maintain order and render effective his instruction to the school; and the plaintiff's parents authorized him to require of the plaintiff obedience to such reasonable rules as were necessary for the government and instruction of the whole school. Their direction, that they did not desire him instructed in public declamation, did not limit the defendant's authority as his teacher, because the referee has found that the regulation was a reasonable and useful one
to the school. They could not require the defendant to receive their child under his instruction, without conforming to his reasonable rules. The plaintiff was ill formed that he must submit to the rule in question by declaiming on February 3, or leave the school. By remaining, he tacitly consented to submit, and gave the defendant authority to compel obedience; or he was a trespasser, and the defendant had the right to expel him. If Morrow v. Wood, 35 Wis. 59, sustains this action, we are unable to follow the decision in that case.
Although the defendant was not, for all purposes, the teacher of a public school, he was the teacher of a public or private school for the purpose of governing the school as against persons who chose to be members of the school; and for any misgovernment, or mal-administration in prescribing studies or requiring educational exercises, the law provided ample remedies; and a refusal to obey his reasonable regulations was not a legal remedy for any wrong of which the plaintiff complains. The defendant did not expel the plaintiff, but merely suspended him until he should comply with the regulations. Whether the educational assembly over which the defendant presided was a school in fact, whatever legal qualities it might lack, — whether it was a public or a private school, — the power of each parent to decide the question what studies the scholars should pursue, or what exercises they should perform, would be a power of disorganizing the school, and practically rendering it substantially useless. However judicious it may be to consult the wishes of parents, the disintegrating principle of parental authority to prevent all classification and destroy all system in any school, public or private, is unknown to the law.
As no unnecessary force was used to remove the plaintiff from the house for non-compliance with a reasonable and useful regulation of the school, the plaintiff cannot recover, and the defendant is entitled to judgment on the report.
Case discharged.
STANLEY and BINGHAM, JJ., did not sit: the others concurred.