99 P. 216 | Kan. | 1908
The opinion of the court was delivered by
The statute relating to schools in cities of the first class contains this provision:
“The board of education shall have power to elect their own officers, make all necessary rules for the government of the schools of said city under its charge and control, and of the said board, subject to the provisions of this act and the laws of this state; to organize and maintain separate schools for the education of white and colored children, except in the high school, where no discrimination shall be made on account of color; to exercise the sole control over the public schools and school property of said city; and shall have the power to establish a high school, and maintain the same in whole or in part by demanding, collecting and receiving a tuition fee for and from each and every scholar or pupil attending such high school.” (Gen. Stat. 1901, § 6290.)
The plaintiff states that the question presented is whether the defendant, by locating and constructing
The schoolhouse was located after the tracks referred to had been laid, and, it is fair to suppose, were being used. The extent of the area included in the school grounds thus surrounded by these tracks, or the number of pupils attending the school, does not appear. It may be that a sufficient school population lives, within such boundaries and in places reasonably accessible to make the erection of a schoolhouse there proper for their accommodation, and this may be, and it probably should be presumed is, the reason why this particular
That boards of education, and not the court, must locate schools, untrammelled by judicial interference in the exercise of the discretion wisely committed to them by the law, is a principle to which we give full and hearty • approval; but the situation here, according to the recitals of this writ, is so beset with impending dangers that we can not say that the attendance of these children at this school should be compelled. We are constrained to say that the order of the board requiring them to attend this school, and no other, was, upon the facts stated in this writ, an abuse of discretion. As that term is ordinarily used it implies not merely an error in judgment, but perversity of will, passion, or moral delinquency ( And. Law Diet. p. 363) ; but the term is applied here to characterize the denial of the rights of citizens clearly given by the constitution and the laws, which a just discretion will not permit. „ .
“It is really a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.” .(Murray v. Buell and others, 74 Wis. 14, 19, 41 N. W. 1010.)
Circumstances may exist where the absence of such privileges is practically unavoidable. It is possible that a family or several families may be located so that no school is accessible, but the facts here stated do not present such an emergency. If it exists, or if for reasons not disclosed in the alternative writ it is practicable for these children to attend the school provided by the board, such facts, with any other matter of defense, may be pleaded. In deciding this motion we only hold that upon the facts stated the plaintiff is entitled to relief by mandamus—not necessarily, however, to admit his children to Lincoln school, as requested, but. to some school Where they will have the privileges given to them by the law.
The motion to quash the alternative writ is denied.