S. E. Bangs and John Sutton brought ’this suit in equity against the directors of Special School District No. 65 in Logan County, to enjoin them from •charging tuition under the provisions of Act 553, Acts of the General Assembly of the State of Arkansas at its regular session in 1919.
The dеfendants filed an answer in which they alleged that for the lack of public funds they did not maintain a free school fоr any grade higher than the eig*hth grade and that they only charged tuition for pupils in the high school grades, which they clаimed they had a rigid to do under the act in question.
The court sustained a demurrer to the answer of the defendants, and, the defendants declining to plead further, it was decreed that the temporary injunction should be made pеrpetual. The defendants have appealed.
Section 1 of the .act under which the defendants acted reads as follows:
“When, in the discretion of the school board of Special School District No. 65 of Booneville, Arkansas, it is deemed necessary to charge tuition, the said school board is hereby authorized аnd empowered to charge such tuition as to such board seems necessary and proper.” Special Acts of 1919, page 720.
The court below held that the act was unconstitutional, and we think the court was right in so holding. Artiсle 14, Section 1 of the Constitution of 1874, reads as follows:
“Intelligence and virtue being the safeguards of liberty and the bulwаrk of a free and good government, the State shall ever maintain a general, suitable and efficient system of free schools, whereby all persons in the State between the ages of six and twenty-one years may reсeive gratuitous instruction. ’ ’
Section 2 provides that no money or property belonging to the public schoоl fund shall be used for any other purpose.
Section 3 provides that the General Assembly shall pass general lаws for the support of common schools by taxes and fixes the rate.
Section 4 provides that the supervision of public schools and the execution of the laws regulating the same shall be vested in such officers as mаy be provided by the General Assembly.
In obedience to these constitutional provisions the Legislature has рrovided by law for a-general and uniform system of common schools where tuition shall be without charge and equаlly open to all pupils within the prescribed ages. As said in Maddox v. Neal,
The court further said that some positive and imperative duties are imposed upon them about which they have no discretion. As we have alreаdy seen, under the plain mandate of our Constitution above quoted and referred to, the gratuitous instruction of all persons in the school district between the ages of six and twenty-one years is guaranteed in the public schоols. The terms “public schools” or “common schools” are used in our Constitution to denote that such schoоls are open to all persons within the approved ages rather than to indicate the grade of a school, or what may or may not be taught therein. There is a great difference in the extent of educatiоn that may he, and often is, tanght in our common or public schools. This subject is confided to the care and discrеtion of the directors, and in the exercise thereof they may establish and maintain grades in the public schools. In the exercise of this discretion the Legislature may provide for high schools as well as the lower grades. In this Stаte a high school is one in which higher branches of learning are taught thanin one that is usually called a commоn school; but the term common school as used in our Constitution denotes a high school as well as one in which thе lower grades are taught. This was recognized in Dickinson v. Edmondson,
“There is a constant effort to raise the standard of education, and, happily for the people of our State, the effort has not failed to meеt with a considerable measure of success. The establishment of high schools is within the limits of common school еducation, because it merely raises the standard of popular education. High schools are freе schools within the meaning of the Constitution, and also common schools within the meaning of that term as used.”
If they did not have sufficient funds, the directors had the authority to limit the common school to the lower grades; but the Legislature, undеr our Constitution, could not vest the directors with the power to establish a high school and charge tuition therefor. It could only vest the directors with power to control and manage the common schools and could vest them with authority to establish schools of lower grades and also high schools which might be free to all persons between the ages of six and twenty-one years; but it could not give the directors power to charge tuition eithеr in the lower grades or in the high school to persons who were entitled to tuition free. There is a conflict in thе case wherein the right of a public school to exact an incidental fee from students has been discussed. But we have been cited to no case in which under a Constitution like ours it has been held that the Legislature might give thе directors of the public schools the discretion to charge tuition either in a high school or the lower grades.
"We are therefore of the opinion that the act under consideration is unconstitutional and void.
It follows that the decree must be affirmed.