State Ex Rel. Beattie v. Board of Edn. City of Antigo
172 N.W. 153
Wis.
1919
Check Treatment

Lead Opinion

Owen, J.

The right of a child of school age to attend the public schools of this state cannot be insisted upon when *234 its presence therein is harmful to the best interests of the school. This, like other individual rights, must be subordinated to the general welfare. It will be conceded, we think, that the foregoing statement of facts presents a fair question as to the effect of the boy’s presence upon the school and the individual pupils attending the same. The question then arises as to what body or tribunal is vested with the authority of determining the question. The trial court seemed to be of the opinion that, while such authority rested with the school board in the first instance, its action in that behalf was reviewable by a jury and subordinate to the jury’s opinion thereon, as indicated by its charge to the jury to the effect that “It is incumbent upon the defendant to prove to you the needfulness of the rule in denying Merritt Beattie the privileges of the graded school by a fair preponderance of the evidence.” The power of the school board in the premises is set forth in sub. 5, sec. 101, ch. 197 (vol. II), Laws 1889, as follows:

“To have in all respects the supervision and management of the common schools of said city, and from time to time, to make, alter, modify and repeal as they may deem expedient, rules and regulations for their organization, government or instruction, . . . and the transfer of pupils from one department to another, and generally for their good order and advancement.” .

The situation here presented aroused the power of the board under that provision of law. Having acted, its determination should not be interfered with by the courts unless it acted illegally or unreasonably. State ex rel. Dresser v. District Board, 135 Wis. 619, 116 N. W. 232; Watson v. Cambridge, 157 Mass. 561, 32 N. E. 864; Kinzer v. Independent School Dist. 129 Iowa, 441, 105 N. W. 686. That it acted legally is without question. That it acted unreasonably cannot be said. The duty confronting the school board was a delicate one. It was charged with the responsibility *235 of saying whether this boy should be denied a constitutional right because the exercise of that right would be harmful to the school and to the pupils attending the same. He should not be excluded from the schools except for considerations affecting the general welfare. But if his presence in school was detrimental to the best interests of the school, then the board could not, with due regard to their official oaths, refrain from excluding him, even though such action be displeasing and painful to them. The record convinces us that the board took this view of the situation and considered the question with the highest motives and with a full appreciation of its responsibility. There is no suggestion that any of the members were prompted by bad faith or considerations of ill will. The action of the board in refusing to reinstate the boy seems to have been the result of its best judgment exercised in good faith and the record discloses no grounds for the interference of courts with its action.

There is one other question which, should be noticed. It is claimed that the school board never acted as a body upon the question of the exclusion of the boy from the schools and that its action is void within the rule “that when a board of public officers is about to perform an act requiring the exercise of discretion and judgment the members must all meet and confer together, or must all be properly notified of such meeting, in order to make the action binding. Individual and independent action, even by a majority of the members of the board, will not suffice.” McNolty v. Board of School Directors, 102 Wis. 261, 78 N. W. 439. It is true that' the exclusion of the .boy in the first instance was not the result of the action of the Board of Education taken at a formal meeting thereof. However, at its meeting on September 13th the board did meet as a board and conferred upon the question as to whether he should be reinstated. A motion was made that he be reinstated, which motion received no second. This amounted to a refusal on the part of the board, acting as a *236 board, to permit him to attend the public schools of the city. The point is not well taken.

The action of the school board, unless illegal or unreasonable, is not subject to the interference of the courts, from which it follows' that the complaint of the. petitioner should be dismissed.

By the Court. — Judgment reversed, and cause remanded with instructions to dismiss the petition.





Dissenting Opinion

Eschweiler, J.

(dissenting). I cannot agree with the result arrived at in the majority opinion in this case for two reasons:

First, because, even under the rule of law adopted by the majority as to the power vested in the school board, it was still a question for the jury as to whether or not there was an unreasonable interference with plaintiff’s rights, there being no evidence that as a fact this boy’s presence did have any harmful influence on the other children.

Second, because I believe there is no such exclusive power intended to be vested in such school board.

Those who drafted the constitution of this state evidently intended to secure to every child a substantial and fundamental right to attend the common schools. Sec. 3, art. X, Const., reads as follows:

“The legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable ; and such schools shall be free and without charge for tuition to all children between the ages of four and twenty years; and no sectarian instruction shall be allowed therein.”

Unquestionably the right of the individual child under such constitutional provision is subject to the equal rights of all other children to the same, and when the attendance of any one child in the public school is a material infringement upon the rights of other children to also enjoy the benefits of free schooling his right must yield.

*237 The majority opinion finds the warrant for the construction it gives to the power of the school board in this case upon the statute giving such school boards the supervision, management, and control of the common’ schools. I cannot agree that a statutory power can be exalted aboye a guaranty of the constitution. Even were the statute to say, as it does not, that the decision of such a school board is to be exclusive and controlling save arid except the one complaining of the exercise thereof is able to show that the exercise of such power by the school board was arbitrary and unreasonable, it would be subject to the substantial objection that it placed an unwarranted burden of proof upon one deprived of a constitutional right.

I think the burden was properly laid, by the instruction given by the trial court to the jury in this case, upon the defendants to show that their action was a reasonable exercise of their statutory duty. If they were unable to convince a jury to that effect their order should be set aside.

Not one of the cases cited in the majority opinion considered any such constitutional privilege as here suggested. The former decision of this court cited does not mention such provision. The Iowa constitution, particularly, expressly grants just such power as is contained in our statute to such board in one of the fifteen subsections of art. IX of that document relating to a board of education. The Massachusetts constitution contains no provision like ours.