6 Neb. 286 | Neb. | 1877
Lead Opinion
An institution for the education of blind persons in this state was established by act of February 19,1875. The provisions of this act placed the institution under the general supervision of a board of trustees, who are authorized and empowered to adopt rules for the government thereof, provide teachers and assistant officers, and to perform all necessary acts to carry out the purposes of the institution. Under the provisions of this act, the legislature selected trustees, who appointed the defendant principal of the institution, which has been conducted according to the design of the establishment. By act of February 13, 1877, the legislature defined the powers and duties of the board of public lands and buildings of the state, created by section nineteen, article five of the constitution. The plaintiffs in this action constitute such board, and have assumed the supervision and control of the institution in question, and claim that they are “ custodians of the buildings and premises,” and have the legal right to the “ general supervision and control of such institution;” and allege that they have removed the defendant from the office of principal thereof, and that he ' refuses to turn over to them the buildings, grounds, and all records, books, papers, and furniture appertáining to said institution, and therefore pray for a writ of mandamus compelling him to forthwith deliver up to them all said property. Under the pleadings and evidence two questions are presented for the consideration of the court: Fvrst, has the state board of public lands and buildings the power to appoint and remove officers of state institutions properly under their supervision and control? and Second, does the institution for education of blind persons come within the exception of section nineteen, article five of the constitution?
Then does the act of February 13, 1877, relative to the duties of the board, confer on them the authority now claimed? It provides that the board “ shall have general custody and charge of all buildings and institutions and the grounds thereto, coming under the provisions of this act, to direct the general management of all said institutions * * * and shall have reviewing power over the acts of the officers of such institutions;” and then by section seven it provides that “ it shall be the duty of the board to take cognizance of all charges and complaints made against said public officers, g,nd at a regular meeting to give an impartial hearing to such charges, and the defense against the same, if any, and report the charges, evidence, and their conclusions in the matter to the governor within six days after the determination of such investigation.” This is the extent of the power given to the board over the officers of such institutions, and it certainly falls far short of vesting them with power to appoint and remove officers of such institutions; and such power cannot be implied from the language of the act — on the contrary, such implication of power is indeed clearly repelled by section seven, which requires the board, after such investigation, to report the charge against such officers, together with the evidence taken and their conclusion in the matter, to the governor. It is also repelled by laws enacted prior to the creation of the board, still in force, and not repugnant to any of the provisions of the act of February 13, 1877. By these former statutes the governor alone is authorized to appoint and remove the warden of the penitentiary, and also the superintendent and assistant
The second question is: Does the institution for the education of blind persons come within the exception of section nineteen, article Y, of the constitution? This section gives to the board the supervision and control of the “ buildings, grounds, and lands of the state, state prison, asylums, and all other institutions thereof, except those for educational pisrposes.” The first section of the act of February 13, 1877, is substantially the same in effect. Now if the institution in question is merely an asylum and not designed for educational purposes, then according to the provision of the constitution it must come under the supervision of the board of public lands and buildings; but if it is designed for educational purposes then it comes within the exception, and is excluded from the supervision of the board.
It is, however, contended that the institute is an asylum; but what is an asylum? It is defined to be aplace where persons fiee for protection. Under the Mosaic Dispensation cities of refuge were set apart to which the slayer might flee so that innocent blood should not be shed, in case the person was not worthy of death — that is, in case the act was accidental and not malicious. But among the ancients, outside of the Jews, it seems that temples, statues to the gods, and altars particularly consecrated for such purposes, constituted such places of refuge for persons generally, and it was deemed an act of impiety to remove forcibly one who had fled to such an asylum for protection. However, Tiberius abolished all asylums except the temples of Juno and iEsculapius. These asylums finally passed over to the Christian world,
Such then seems to have been the origin, nature, and object of asylums, and such the common acceptation of the term; but more recently, in some countries, the name has been given to institutions for the protection and care of the poor, blind, deaf and dumb, and lunatics who are incapable of taking care of themselves. 1 Encyclopaedia Americana, 439. Hence the word asylum having always had a common and well understood signification, our best lexicographers define it to mean “ a sanctuary or place of refuge and protection where criminals and debtors found shelter, and from which they could not be taken without sacrilege; an institution for the protection and relief of unfortunates, as asylums for the poor, for the deaf and dumb, or for the insane.”
Now is the institution in question, in its nature, object, and purpose an asylum according to the plain meaning and common acceptation of the term? The act which establishes it provides for a principal, who shall report to the governor prior to each session of the legislature the number of pupils, their names, age and sex, the stu&ies and trades taught, and also provides for
The primary and sole object of the institution then, is to furnish blind persons of suitable age and capacity with a thorough practical education, and in doing this the state has only done tardy justice by placing this class of persons upon an equality in advantages of education with those who are taught in the other educational institutions of the state. And the imposition of duties upon each county superintendent in connec
It was, however, contended that because an appropriation is made to meet the ordinary expenses of the institution, including furniture, books, maps and instruction in some manual arts, whereby the pupils may be taught trades, and thus afforded the means of supporting themselves in after life, it is a charitable institution, and should therefore be adjudged an asylum.
But if for this reason it must be adjudged an asylum, then for a like reason our state university and normal school must be adjudged mere asylums; for the act establishing the university provides for a department of agriculture in which .the student is taught the science and manual art of practical farming at the expense of the state, and there is also a department in which the fine arts and the principles of painting and sculpture are taught; and the act to locate, establish, and endow
The proposition — whether the institution in question is or is not for educational purposes — must be determined in the affirmative or negative, for the answer to it cannot be evaded. If answered in the affirmative (and that it must be so determined will hardly be questioned) then it comes within the constitutional exception, by whatever name it may be called, for the constitution without any reserve or limitation excepts “ those for educational purposes ” from the supervision of the board. And if the court can take any one educational institution out of this exception, it certainly can by an exercise of the same power do likewise in respect to any other or all the other educational institutions of the state;
Tbe law seems well settled that an action by mandamus will lie to compel an officer to deliver up property of the state held by him without right or authority of law; but for the reasons given in this opinion, I think, the writ of mandamus must be denied in the case at bar.
Concurrence Opinion
I concur in the opinion prepared by my brother Gantt, so far as it holds that the board of public lands and buildings have no power to appoint and remove the principal. It is also admitted that the word “ asylum ” in its original signification has no application to the institution for the blind, if indeed it applies to any institution in the state. It will also be conceded that in the institution in question the inmates are instructed in various branches of learning adapted to the blind. Section 18 of the act approved February 19, 1875, “to erect and maintain an institution for the blind,” provides that, “ for the purpose of meeting current expenses, there is appropriated out of the state treasury so much as is necessary, not to exceed forty dollars per quarter to each pupil in said institution, provided that such amounts shall be drawn by warrants on the temporary school fund of the state.” Section 17 provides that all blind persons resident of the state, of suitable age and capacity, shall be entitled to an education in this institution, at the expense of the state.
Do these provisions make this an institution for merely educational purposes % I think not.. It is properly a charitable institution, where an unfortunate class of individuals are received, maintained, and educated (if need be) at the expense of the state”. If not an asylum in the primary meaning'of that word it is at least an in
Lake, Ch. J.
I was absent during the argument of the respective counsel and therefore am not in possession of the points on which they severally relied, and but for the disagreement of my brother judges on one of the principal questions would have remained silent.
The court are agreed however that ihe writ of mandamus must be denied, on the ground that the attempted removal of the respondent from his office of principal was in excess of the power granted to the board of public lands and buildings, and therefore a void act. We are also agreed that this power, as well as that of filling a vacancy in that office, is vested alone in the governor.
As to the particular class of the institutions mentioned in section 19, article Y of the constitution to which the institution for the blind properly belongs, I entertain no doubt whatever that it falls within the one denominated, “ asylums.” It is very clear that it is an institution intended to relieve, protect, and support if need be, for a time an unfortunate class of our people,
The constitution was made'by the people, and for the people. The words and terms employed were used with reference to existing facts, and in their ordinary and popular sense, and it is in this sense that they should be used by the courts in construing the several provisions of that instrument.
Two members of the court agreeing that this is not an educational institution, it follows that it is within the control of the board of public lands and buildings. The peremptory writ must be denied.
Writ denied.