Samson v. Town of Grand Isle

78 Vt. 383 | Vt. | 1906

RowELL, C. J.

It is to be taken on the pleadings that the school maintained by the town in the building mentioned, was not a high school within the meaning of the statute, but was at most no more than a select school, a thing not known to the statute. But the relators claim that the status of the school is not material, because they say that the right to have and enjoy its privileges became vested in them and other taxpayers by the following acts of the town, namely: (1) by the acceptance of the gift from Davis with its conditions; (2) by the purchase of the church therewith “for a graded school building”; (3) by the appropriation and payment of money out of the town school fund for equipping said building “for school purposes”; (4) by the opening of said school, and the payment of the expenses thereof for the two years mentioned ; and (5) by voting, assessing, and collecting taxes for maintaining the same. They say that while it is, by statute, for the school directors to regulate the expenditure of school money, and to- determine the number and location of schools, yet that that authority must be exercised with sound legal discretion, and that if their discretion is abused and made to work injustice, as it is claimed it has been here, it may be controlled by mandamus.'

As to the vested right claimed. Since the town was not bound by statute to establish and maintain said school, nor yet by the Davis gift, which called for a graded school, which this was not, the fact that the town appropriated and used school money to equip said building’ “for school purposes,” and opened said school therein, and voted, assessed, and collected taxes to' maintain it, and paid the expenses thereout for two years, — vested no1 right in the relators to have it continued, for it was but the way the town voluntarily selected, to furnish higher instruction to advanced pupils, and that way was not part of the right to such instruction, if any such right then existed, and therefore the town could abandon that way at any time, for no right vests in methods and procedure when not a part of the right itself.

This being so, abuse of discretion on the part of the school directors is not predicable of their refusal to- continue said school against the will of the town, for they had no authority to do so.

As to the claim for a high school. No>. 37 of the Acts of 1904 provides, among other things, that every town shall establish and maintain a high school, or furnish higher instruction for advanced pupils'as therein provided; and that th,e board of school directors shall provide for the instruction of advanced pupils in the high school or schools of the town, in the high school of an incorporated school district or academy within the town, or in the high schools or academies of other towns within or without the State; provided the tuition'paid for such instruction shall not exceed so much for such a time for each pupil.

It follows, therefore, it being discretionary which of the prescribed courses shall be selected, that those whose duty it is to select, cannot be compelled to select one course instead of the other, but only to select one course or the other, if they should refuse to select either. As it does not appear that they have thus refused, and as the answer avers that the defendant directors always have been and still- are ready and willing to furnish high school instruction to' all the pupils of the town that are eligible under the law to high school privileges, and denies that they have ever refused, or given out in speeches that they intend to refuse, to furnish or pay for such instruction as the law contemplates, and that they have never sought to deprive such pupils of any privileges secured to them by the law, a writ cannot issue for the establishment and maintenance of a high school.

Complaint dismissed with costs.