84 Wash. 79 | Wash. | 1915
Lead Opinion
School District No. 301 of Whatcom county seeks a writ of mandamus to compel the respondent, as state superintendent of public instruction, to apportion the current school funds of this state, to Whatcom county and to district No. 301, upon the basis of the actual days of school attendance as shown by the last annual report of the county superintendent of schools of Whatcom county.
It is alleged that the respondent, in making the apportionment of school funds in the month of October, 1914, arbitrarily reduced the school attendance of relator district five days for each and every pupil attending school in said district.
The respondent pleaded, in her answer to the application for the writ, that school was maintained in the relator district for the period of five days between June 1, 1913, and September 15, 1913; that, according to the annual report of the superintendent of schools of Whatcom county for the school year ending June 30, 1914, there was a total school attendance in the relator school district of 834,443 days, and that the public schools in said district had been in session a total of 187 days, but that said report did not show the day of the opening nor of the closing of the schools within said district nor the particular days said schools were in session; that five of the 187 days during which the schools in relator district were in session for said year ending June 30, 1914, were within the said vacation period of the summer of 1913, and that the reduction in the number of days’ attendance in relator district in making the apportionment by said respondent was by reason of said five days above referred to. Respondent further pleads that it is the practice and the duty of said respondent, as superintendent of public instruction, to require the county superintendent of Whatcom coun
To these affirmative answers of respondent, the relator demurs and by its demurrer admits the affirmative allegations contained therein. The relator earnestly contends and urges that the apportionment of school funds by the state superintendent of public instruction is a mere ministerial act in which she has no discretionary powers, but that she must apportion them upon the annual report of the county superintendents of the various counties, and has no power to revise, correct, review, or modify the same, and that in so doing, as is alleged in this case, her action was arbitrary and without warrant of law. Section 4562, 3 Rem. & Bal. Code, relating to the apportionment of current state school funds, provides as follows:
“The superintendent of public instruction shall apportion to the several counties of the state on or before the 20th day of July, October, January, April, May, and June of each year such current state school funds as have been certified by the state auditor to be in the hands of the state and county treasurers.”
Section 4563, 2 Rem. & Bal. Code (P. C. 413 § 535) provides :
“For the purpose of the apportionment the superintendent of public instruction shall base his calculations upon the days’ attendance as shown by the several county superintendents’ last annual reports filed in his office.”
It is the contention of relator that the provisions of § 4563, supra, are mandatory and leave no discretion whatever with the superintendent of public instruction, but that the apportionment of current state school funds to the several counties of the state must be made upon the actual days’ attendance as shown by the county superintendent’s last annual report, and that the state superintendent has no power or authority under the law to modify or change the annual report of such county superintendent of schools. Many auth
Great reliance is placed upon the last cited case. We find it was decided by a divided court, a bare majority holding to the view that the state superintendent of public instruc-' tion of Missouri had no discretion in the matter of apportioning funds where it was claimed by him that the county and school district had fraudulently padded the enumeration or census of the school districts. Upon that same question, we find the authorities about evenly divided, the courts of Kentucky, Georgia, Montana, and Tennessee holding to the contrary. In any event, the matter of going behind the school census taken by enumerators and requiring a considerable investigation to review or correct is very different from reviewing the report or returns of a county or school district officer. In this state, the code of education, which prescribes the duties of school district and county officers and of the state superintendent of public instruction with regard to the public schools and the public school funds, confers upon the state superintendent very wide powers. Section 4303, Rem. & Bal. Code (P. C. 413 § 3 et seq.), provides:
“The administration of the public school system shall be intrusted to a superintendent of public instruction, . to county superintendents of common schools, to boards of directors and district clerks.”
Section 4307, Rem. & Bal. Code (P. C. 413 § 9 et seq.), provides among other things:
*84 “The powers and duties of the superintendent of public instruction shall be:
“First. To have supervision over all matters pertaining to the public schools of the state. . . .
“Third. To prepare and have printed such blanks, forms, registers, courses of study, rules and regulations for the government of the common schools, questions prepared for the examination'of teachers, and such other blanks and books as may be necessary.
“Ninth. He shall file all papers, reports and public documents transmitted to him by the school officers of the several counties of the state, each year separately. Copies of all papers filed in his office, and his official acts, may be certified by him and attested by his official seal, and when so certified shall be evidence equally and in like manner as the original paper.
“Nineteenth. To perform such other duties as may be required by law.”
Section 4472 et seq., Rem. & Bal. Code (P. C. 413 § 345 et seq.), provide for the election of county superintendents of schools in each county, and define their powers and duties. Section 4475, subd. 11 (P. C. 413 § 351), requires county superintendents :
“To make an annual report to the superintendent of public instruction on the first day of August of each year, for the school year ending June 30th, next preceding. T,he report shall contain an abstract of the reports made to him by the district clerks, and such other matters as the superintendent of public instruction shall direct. And it shall be the duty of the county commissioners and county auditor in every county wherein the county superintendent is about to retire from office to withhold the warrant of his salary for the month of July until they shall have received a certificate from the superintendent of public instruction that the annual report of such county superintendent has been made im, a satisfactory manner [the italics are ours] ; and it shall be ■ the duty of the superintendent of public instruction to transmit such certificate to the auditor immediately upon receiving such satisfactory report.”
“Every hoard of directors of a school district of the first class shall, . . . have the power: . . .
“Fifth. To employ, and, for cause, to dismiss teachers, and j anitors; to determine the length of time over and above eight (8) months that school shall be maintained, such length of time to give a consecutive vacation of not less than three months between June first of any year and September 15th of the same year; to fix the time for annual opening and closing of schools, and for the daily dismissal of primary pupils before the regular time for closing schools.”
Under the last section it will be noted that the law provides that, in school districts of the first class, there shall be a vacation of not less than three months between June 1 of any year and September 15 of the same year. There does not appear to be any provision for the enforcement of this provision. It may be, as relator says, that this is an extraordinary provision of the law, but with that we have nothing to do. The legislature has seen fit to enact it into law, and must have had sufficient reason therefor. The relator in this case admits that it violated the law by holding school for five days during the interdicted or vacation period.
“Since mandamus is a discretionary writ and those who invoke its aid must come into court with clean hands, it will not be issued to accomplish an illegal purpose, . . .” 26 Cyc. 325.
Relator urges with some vigor that the school district should not be penalized for the violation by the school district officers of the law requiring continuous vacations from June 1 to September 15 of any year when, as a matter of fact, school was actually held and the actual attendance for the five days was deducted by the relator. But, on the other hand, the school district through its officers should not wilfully or carelessly violate the law and then ask the court
The relator relies largely upon the decision of this court in the election cases, State ex rel. Case v. Superior Court, etc., commonly called the “Seven Sisters” cases, decided September 21, 1914, reported in 81 Wash. 623, 143 Pac. 461. The decision in those cases is not in point. It was held in those cases specifically that the secretary of state was purely a ministerial officer as to the matters there involved, and furthermore it must be conceded that the secretary of state has-no supervisory .control or authority over election or registration officers of high or low degree. In this case, however, the state superintendent of public instruction, throughout the school code, has very great powers of supervision and control over all the subordinate officers of the common school system. It has been held by this court, in the case of Great Northern R. Co. v. Snohomish County, 48 Wash. 478, 93 Pac. 924, and followed later in the same case in 54 Wash. 23, 102 Pac. 881, that general supervision means something more than the power merely to confer with and advise, or to receive reports, or file papers. In other words, that the power of supervision
We believe that the respondent acted within her legal powers and authority in making the apportionment. The writ is therefore denied.
Parker and Mount, JJ., concur.
Dissenting Opinion
(dissenting) — The office of state superintendent of public instruction is created by statute; its duties and powers are defined by statute. Whenever, therefore, any question arises as to the nature or extent of such duties or powers, reference must be had to the statute to determine it. Referring to the so-called school code, wherein is to be found all the law relating to the public schools of this state, I look in vain for any such delegation of power, the exercise of which results in the act here complained of.' No such power is vested in respondent by any law. Nor is there any legal warrant for imposing such a penalty. The school code devotes one entire chapter (Laws 1909, p. 357, Tit. III, ch. 14) to the subject of penalties, providing for various penalties for various acts deemed violations of the provisions of the code. No reference is there made to the penalty sought to be enforced in this case. The legislature, having provided the various penalties to be imposed, it must be assumed that such penalties are exclusive of all others. Assuming, therefore, all that respondent contends as to the extent of her supervisory powers over all matters pertaining to the common schools of
Chadwick, J., concurs with Morris, C. J.
Rehearing
On Rehearing.
[Bn Banc. June 8, 1915.]
Upon a rehearing En Banc, a majority of the court adhere to the opinion heretofore filed herein. For the reasons there stated, the writ is denied.