104 N.Y.S. 122 | N.Y. Sup. Ct. | 1907
In 1866 the relator, the Brooklyn Children’s Aid Society, was incorporated as a charitable organization under the general act of 1848. Its certificate of incorporation states that it was incorporated “ for the purpose of establishing one or more homes or lodging houses for children in the City of Brooklyn,” and that “ the particular business and object of the Society shall be the protection, care and shelter of friendless and vagrant youth, furnishing them with food and raiment and lodging, and aiding and administering to their wants,. providing them with occupation, instructing them in moral and religious truth, and in the rudiments of education; and with such means as the .Society can properly employ, • endeavoring to make them virtuous and useful citizens.”
The certificate further states that the place of business and principal office of the society should be located in the city of Brooklyn, Kings county, New York. It appears from the evidence that the maintenance of homes or lodging-houses for poor children in Brooklyn or elsewhere was aban
One Howard Wisbauer, in March, 19.02, at the age of six years, was left an orphan by the death of his mother, his father having previously died. His parents lived and died in Brooklyn. He was born in that city and continuously lived there until the death of his mother. Within a. few days after the death of his mother an older brother delivered him into the care of the Brooklyn Children’s Aid Society, and he has since that time been subject to its supervision and direction. The society did not immediately succeed in placing him in satisfactory surroundings, and after several changes finally, in October, 1905, placed him in the home of Mrs. Carrie Place, in the village of Huntington, where he has ever since remained.
By its arrangement with Mrs. Place the society paid her one dollar and seventy-five cents per week for the boy’s board, also paid for his clothing. There was no' arrangement as to the term of his abode with Mrs. Place, and the arrangement could be terminated at any time by either party to it. It may be inferred, however, from the fact that the boy has remained with Mrs. Place for a considerable time and from the parental attitude she has assumed toward him, that his abode with her is likely to be of a permanent character. Wisbauer seems to have been treated as a member of Mrs. Place’s family, she exercising parental care over his welfare and he rendering her such services as a child might render a parent.
Mrs. Place resides in the Huntington free school district No. 3. of the town of Huntington, Suffolk county, New York. The board of education of that school refuses to allow Wisbauer to attend school without charge for his tuition, on the ground that he is not a person “ residing in the district ” within the meaning of section 36 of title 7 of the Consolidated School Law (Laws of 1894, chap. 556). The section of the Consolidated School Law referred to provides as follows: “ Common schools in the several school districts
In considering .this case upon its merits a determination of the meaning of the words “ residing in the district,” as used in this section of the School Law, is required; and aid in solving this question of statutory construction may properly be sought by reference to the well recognized public policy of this State relating to education, and to the whole of the statute of which the above section forms a part.
It need hardly be 'said that public policy has recognized that it is to the interest of the State to have all the children educated in order that they may become good citizens. Ignorance and vice go hand in hand. Public welfare requires that every child shall have an opportunity to attend school. It has been well said: “ Our common schools are not confined to any class, but are open to all; the trustees have no power to admit or reject pupils arbitrarily; they have no authority to make rules and regulations fixing a standard of admission for members. They are bound to instruct all the children who present themselves, without regard, to their social relations, their station in life or their religious faith. The spirit of our institutions on this point was embodied in the. first section of the act of 1849, which declared that ‘ common schools shall be free to all persons residing in the district over five and under twenty-one years of age.’ The word ‘ common ’ as applied to our schools, bears the broadest and most comprehensive signification. It is equivalent to public, .universal, open to all; for such is their character, subject only to such general statutory regulations as are prescribed by the legislature. They are common to all children in the sense that public highways are common to all persons who may choose to ride or drive thereon, observing only the law of the road. Thus they have been treated by the legislature in the various enactments on the subject.” People v. Board of Education of Brooklyn, 13 Barb. 400, 410.
The right of a child of this State to receive free education has thus become a constitutional right.
It is probably true that Wisbauer did not have a domicile in the Huntington union school district in the technical meaning of that term. Domicile in that sense is the actual or constructive presence of a person in a given place, coupled with the intention to remain there permanently. A minor cannot exercise an independent intent in this matter. A minor can have no domicile other than that of a parent or guardian; and, where both parents are dead, the domicile of the minor continues to be that of the last surviving parent. To construe the word “ residence ” as used in the School Law as synonymous with the word “ domicile,” and to give to it the narrow and technical meaning of the latter word, would seriously impair the usefulness of that law, and would defeat various provisions of the statute. A recital of the various provisions of the School Law in which the residence of children is referred to makes it obvious that it was not the legislative intent to employ it in the narrow sense of domicile. In prescribing the qualifications of voters at annual school' meetings section 11 of title 7 of the School Law, among other things, provides: “ Every such person, not being a parent, who shall have permanently residing with him or her a child or children of school age, some one or more of whom shall have attended the district school in said district for a period of at least eight weeks within one year precediug such school meeting,” etc., shall be entitled to vote.
■ Section 36, title 7, previously referred to, provides: “ Common schools in the several school districts of this state shall be free to all persons over five and under twenty-one years of age, residing in the district as hereinafter provided.”
Section 59, title 7, provides: “The trustees of each
Section 60, title 7, provides: “The annual reports of trustees of school districts of children residing in their district shall include all over five and under twenty-one years of age who shall have been on the 30th day of June last preceding the date of such report actually in the district, comprising a part of the family of their parents or guardians or employers, if such parents, guardians or employers resided at the time in such district, although such residence was temporary; but such report shall not include children belonging to the family of any person who shall be an inhabitant of any other distric1" in this state in which such children may by law be included in the report of its trustees.”
Section 13 of the Compulsory Education Law (Laws of 1894, chap. 671) provides that said act shall be known as title 16 of Consolidated School Law.
Section 2 of the Compulsory Education Law, among other definitions, gives the following: “The term persons in parental relation to a child includes the parents, guardians or other persons, whether one or more, lawfully having the care, custody or control of such child.”
This statute also requires every child between the ages of eight and sixteen, in proper physical and mental condition, to attend school, and directs “ every person in parental relations ” to such child to cause the child to attend school.
All through these sections it is apparent that the Legislature refers to the actual residence of the child, and not to its domicile which by legal fiction is dependent on that of its parents. The duty of one standing in “ parental relation ” to a child to send it to school, as well as the duty of
The relator found a home for this orphan child in the village of Huntington where he could have proper surroundings and could receive parental care. It was because of these considerations that he was sent there, and not for the purpose of enabling him to attend the Huntington school in evasion of the School Law. The child had no other home or residence. Under these circumstances he is entitled to receive a free education in the “ common ” school of the district in which he actually resides.
Similar views to those above expressed have been enunciated by the courts of our sister States in the following cases: State v. Thayer, 74 Wis. 48; Yale v. West Middle School District, 59 Conn. 489; School District v. Pollard, 55 N. H. 503; School District v. Bragdon, 23 id. 507.
It seems to have been the understanding of the parties that the issues should be tried and disposed. of upon the merits. The attorney for the defendants in his brief expressly states that he does not insist on the objection set up in the return that the alternative writ is directed to the defendants individually and not to them as constituting the board of education. The attorney for the defendants does,
The board of education of the Huntington union school, is a corporation (Consolidated School Law, tit. 8, § 7), and it must sue and be sued as such. Bassett v. Fish, 75 N. Y. 303.
It is well established, however, that a writ of mandamus lies to the officer, board or other organ of the corporation whose legal duty it is to perform the required act. People v. Common Council, 3 Keyes, 81; People v. Brinkerhoff, 68 N. Y. 259.
Service of the alternative writ could be made on the board as such by service upon a majority of the members or upon its presiding officer. Code Civ. Pro., § 2011. Service of the writ in this case was made on the majority of the board as now constituted, including its president The alternative writ was issued after the election of the two new trustees, and the return thereto does not set up their election in abatement. The obligation sought to be enforced devolved on no particular set of trustees constituting the board. The right of Wisbauer to attend the Huntington union school was not affected by the election of the two new trustees. It continues to be the duty of the board as now constituted to permit him to attend the school; and the peremptory writ may be directed to and enforced upon the trustees constituting such board generally. “ To say otherwise would be a sacrifice of substance to mere form.” People ex rel. Case v. Collins, 19 Wend. 56, 68.
Order directing the issue of" peremptory writ of mandamus should be granted.
Mandamus granted.