18 Mich. 400 | Mich. | 1869
Under the general laAV of the state, entitled “Of primary schools,” the several toAvnships are divided by the township boards of school inspectors into districts, each of which is a corporation, Avith officers chosen by its members, and Avith large powers in the establishment and control of schools, the management and disposition of school moneys, and the levying and collection of taxes. These districts generally have a single school house only, and they need only the simple machinery prescribed by the general law for the proper performance of their corporate functions. For the larger towns of the state, it has been deemed necessary to make special regulations; and general and special laAvs have been passed under Avhich most of the cities and large villages of the state have been made union school districts,
The city 'of Detroit is one of the towns provided for by special legislation. By an act “relative to free schools in tbe city of Detroit,” passed in 1842, (S. L. 1842, p. 112) it was provided that “the city of Detroit shall be considered as one school district,” and the control of all schools organized therein was put under the direction and regulations of the board of education therein provided for. Previous to this act, there had been within the city the anomaly of a district within a district; the former including only the colored population; but this was inconsistent with the free school act and was therefore repealed by implication. The free school act has been modified subsequently, and in the present year has been revised throughout; but the city is still declared to be one school district, in the same language we have quoted from the original act.
Such being the division of the state into school districts, the legislature of 1867 passed an act amendatory of {¡the primary school law, one section of vfhich is as follows: “All residents of any district shall have an equal right to attend any school therein: Provided that this shall not prevent the grading of schools according to the intellectual progress of the pupils, to be taught in separate places when deemed expedient.” (S. L. 1867, vol. 1, p. 43.)
It cannot be seriously urged that with this provision in force, the school board of any district which is subject to
Does this provision apply to the city of Detroit ? That city, as we have seen, is expressly declared to be “one school district,” and is, therefore, within the words of the act of 1867. That the legislature seriously intended their declaration of equal right in the schools to be partial in its operation, is hardly probable. But they may, nevertheless, have failed to make it universal, if they have incorporated it in a law from the.operation of which some portion of the state is exempted by other laws.
The declaration is incorporated in the general primary school law. I am not aware that there is any organized portion of the state that does not come under some of the provisions of that law. The specially created union school districts are subject to it, except so far as the special legislation creating or governing them is inconsistent. The declaration in the Detroit free school act that the city shall constitute one school district, is idle for any other purpose than to connect the city with the primary school system which the general law establishes, and to give its citizens the advantages, and to require of its officers the performance of such duties as are essential to the harmonious working of the general system within the city. That was undoubtedly its purpose. It is not true, therefore, that the primary school law has no application in the city of Detroit, or that we can say of any of its provisions respecting districts that Detroit is exempt from them, unless we are able to see how those provisions are inconsistent with the free school act, or with any other special legislation that may have established peculiar regulations for that city.
Many things in the free school act clearly refer to the
It is true that the board of education are vested with large poivers to make rules and regulations respecting the schools, and the attendance of pupils therein, but this fact alone is not sufficient to show a legislative intention that
If that application was not the immediate occasion of the legislation in question, it is at least highly probable, that it presented one of the cases which made new legislation appear important; and if the act was not intended to reach the districts which are empowered to make their own regulations, then we shall witness the remarkable spectacle of a law which assumes to prohibit what the
In one particular the section in question is undoubtedly modified in its operation within the city of Detroit, and within every other school district of the state which lawfully establishes more than one school for pupils of the same grade. The fixing of school limits in such case, and the establishment of regulations which shall require children residing within those limits to attend the schools therein, are within the contemplation of the statutes, creating or authorizing the creation of the districts, and are therefore, lawful and proper. But we do not discover that there is anything in any of those statutes — and we include particularly in this statement, the Detroit free school act — that overrules or modifies the requirement of the general law, that the right to attend the schools shall be possessed equally and impartially by all classes of residents.
The conclusion is inevitable, that the legislature designed the impartial rule they established to be of universal application.
It remains to be seen whether there are any formal objections to the writ prayed for. It was suggested by the respondents, that the father, as such, could not apply for a mandamus on behalf of his infant child, but that the child should apply by guardian ad litem. The father is the natural guardian of the child, charged with his nurture and education, and having a personal duty to perform in respect thereto. Although the proceeding is for the benefit of the child, the duty of placing him in school is the parent’s, and the father is entitled on his own behalf to appeal to the courts for the removal of any unlawful impediments. It was also urged, that the application for the writ did not
As the statute of 1867 is found to be applicable to the case, it does not become important to consider what ivould otherwise have been the law.
The claim of the relator in this case is, that the Board of Education of Detroit cannot lawfully maintain the separate schools for colored children, which have ever since its organization been maintained, and are now kept up in the city, and require them to attend there.
If there is any ground of complaint, the relator is the proper person to bring the case before the court. No one can be more interested than the father of a child in obtaining his school privileges.
The question involved is purely one of law, and cannot properly be allowed to become involved in any complications of policy. If the board of education have the control over the arrangement and classification of the schools, which they have heretofore exercised, their action cannot be judicially revised. If they have exceeded their powers, the excess can be restrained, and the writ applied for is the proper process.
The counsel for relator did not claim upon the argument, that the law of 1867 was applicable . to city schools, and we have not, therefore, had the benefit of any lull dis-
It seems to me that section 28 of the statute of 1867 is foreign to the inquiry. It is inserted in the middle of that part of the primary school law which relates entirely to the organization of the ordinary districts, and the powers and duties of their officers. The fact that it purports to be an amendment of a section that has not been in existence since 1859, might perhaps bear upon its validity; but it is inserted where it naturally belongs, and while going far enough to prevent discrimination in attendance in the general districts, it was needed tor other purposes as well, in those districts. As to them, it covered ground upon which there was no clear legislation; while as to the Detroit schools, the whole subject had been either provided for by legislation, or expressly put in the control of the board. The application to this court for a mandamus to admit a colored child to a school in an interior city, had disclosed to the legislature the remarkable fact, that the rights of attendance on district schools had been left almost entirely to depend upon implications which, while possibly within reasonably plain bounds in many respects, had nevertheless given rise to honest doubts and difficulties. In Detroit tlTe school ages were within narrower limits than the census ages, and on the other hand, the schools were all absolutely free to those within those ages, and the classification and arrangement were left entirely to the board, who were bound to do what they could for every one. The absence of some positive provision raised other difficulties than those relating to colored children, and to age and residence. There was one clause giving non-resident tax-payers, who had no schools at home, the right to send their children into districts where they were taxed, which, has tended to make some confusion in-the popular mind, touching the relative rights of others.
Upon every usual rule of construction, this 28th section should not be made applicable to any special system where there had been already legislation covering the ground, even if the Detroit school law had in some other respects been dependent on the primary school law. But there is not, so far as I have been able to discover, a single provision of that law from beginning to end, relating to schools and their regrdations, which has any such applicability. Even in regard to the school census, the board makes its own by-laws, and deals with none but county and State officers. This census has nothing to do with the regulation of schools, and is not based on attendance, or used in them at all, as a guide to determine who are admissible. It is made to facilitate the distribution of school moneys
If it should be suggested that it cannot be presumed different provisions would be permitted among different children in different places, it cannot be denied that these differences have been expressly created by law. Until 1869, the school ages were different in and out of the city.. When the census was on the basis of a range of ages from four to eighteen, the city schools were confined by law to the ages between five and seventeen. Since the
We cannot avoid seeing, and counsel very frankly admitted, that the force of the relator’s claim depends much, if not entirely, upon the effect to be given to a changed condition of public affairs, and whatever corresponding change that condition may have wrought upon public opinion concerning the treatment of colored persons. How far the regulations complained of arose out of any less favorable opinion is not very clear. It is claimed that the rule now enforced is founded on very different considerations, and that the original act of 1841, which first required the separation, was meant to be beneficial, and not invidi
I think there is no case made for relief.