State ex rel. Comstock v. Joint School District No. 1 of Arcadia

65 Wis. 631 | Wis. | 1886

Lvorr, J.

Sec. 3, art. X, of the constitution, 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.” Counsel for appellant maintains (using his own language) “that a reasonable interpretation of the constitutional provision in question places no restriction as to the residence of the scholar, except that he or she reside within this state, and is of the proper age; and also that scholars may not be admitted to the public school of another district than that wherein they reside, when such admission will in any manner interfere with the accommodation or instruction of the scholars residing therein.” From these propositions he argues that the appellant’s affidavit shows that his son is absolutely entitled to the privileges of the school in the respondent district; and that he is so entitled without charge for tuition.

We find ourselves unable to assent to the proposition that a child residing in one school district has any absolute right, under any circumstances, to the privileges of the common school of another district. The constitutional requirement is that “the legislature shall provide by law for the establishment of district schools.” Inasmuch as there must be school districts before there can be district schools, and inasmuch as the school district system was in full operation in the territory when the constitution was framed and adopted, it is clear that section 3 of article X is a recognition of that system, and a mandate to the legislature to preserve and continue its essential features. One feature of that system is, and, so far as we are advised, always has been, wherever the system has prevailed, that the absolute right to the privileges of the school in any given district is confined to children residing, in such district, and having the prescribed qualifications. We never before heard this proposition questioned or doubted, and we are aware of no adjudication to the contrary. We do not think any court has ever denied the proposition. Certainly no casé to that effect has been cited to us.

But it is said that, unless the right claimed is asserted and enforced, the district schools of the state are not free to the children of the state of the prescribed age. It is conceded that nonresident children are not entitled to the privileges of a district school unless those privileges may be enjoyed without detriment to resident children. This limitation of the right is not found in the constitution. To concede it is to concede that the school is not absolutely free to nonresident children, but only conditionally so. The concession destroys the argument based upon the use of the word/m? in sec. 3, art. X. The proposition we are considering is, in substance and effect, that all or any of the district schools of the state are free to each child in the state within the prescribed ages. The utter impracticability of operating the district schools on any such basis is too plain for discussion. We think, and so hold, that when the legislature has provided for each such child the privileges of a district school, -which he or she may freely enjoy, the constitutional requirement in that behalf is complied with. This the legislature has done.

It results from what has been said that it is competent for the legislature to authorize the several school districts to admit nonresident children to the privileges of their respective schools, or to exclude them therefrom. The legislature having conferred such authority upon school districts (R. S. sec. 430, subd. 12), it is entirely in the discretion of each district to admit to its school any such nonresident children or child, or to refuse to do so. The district is the- sole judge as to whether the admission of such nonresidents will or will not “ interfere with the accommodation or instruction of the scholars residing therein” (sec. 430, supra), and if it would not so interfere, still the district may lawfully close the doors of its school against nonresidents.

Because it is so absolutely in the discretion of the respondent school district to refuse the admission of appellant’s son to the privileges of its school, the writ of mandamus cannot properly go to compel it to admit him; and it is quite immaterial if the district has refused to admit him on untenable grounds. The absolute power to deny him admission, without assigning any reason therefor, still remains to the district. "Were this court to adjudge that the district cannot lawfully exact tuition fees as a condition of admitting appellant’s son to its school, still it could not properly send the writ of mandamus to the district, ordering it to do so, for the writ might be defeated by an unconditional refusal of the district to admit him; or it might admit him, and immediately thereafter expel him. If the district has no power to charge tuition fees to nonresident scholars, the only mandate the court could consistently send would be that if the district should, in the exercise of its discretion, admit the scholar, it should do so without requiring him to pay tuition fees. It is scarcely necessary to say that the writ of mcmdamus performs no snob office, and cannot properly be issued in any such case. The books abound with cases which assert and enforce the rule that mandamus will not lie to control the exercise of discretion or official judgment. High, Extr. Rem. §§ 24, 42, and cases cited; State ex rel. Lord v. Sup'rs Washington Co. 2 Pin. 552; State ex rel. Gill v. Common Council of Watertown, 9 Wis. 254; State ex rel. Byrne v. Harvey, 11 Wis. 33; State ex rel. Martin v. Doyle, 38 Wis. 92. For the reasons here suggested the application for the writ was properly denied.

The question whether the clause in the statute above cited, which authorizes the district to charge tuition fees in such cases, is a violation of sec. 3, art. X, of the constitution, which ordains that the district schools shall be without charge for the tuition of the children therein mentioned, is not and cannot properly be here determined. We do not reach it. The question is interesting,— perhaps important. It was ably argued by the learned counsel, but the determination of it is not essential to judgment herein, and we leave it open until a case arises in which it becomes necessary to dstermine it.

As to the practice adopted in this case, it should be said that, instead of the order to show cause why a peremptory mcmdamus should not issue, the first process should have been an alternative writ of mcmdamus. It was so held in State ex rel. Taylor v. Supervisors of Delafield, 64 Wis. 218, where the whole subject is fully discussed in the opinion by Mr. Justice OktoN, and the practice settled.

By the Court.— The order of the circuit court is affirmed.