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ent teachers, in which the children pass from the lower departments to the higher as they advance in education.

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charge, the authorities overwhelmingly support the doctrine above laid down.

are required to be taught in the public schools, the prudential committee and the teachers must of necessity have some discretion as to the order of teaching them, the pupils who shall be allowed to pursue them, and the mode in which they shall be taught. If this were not so, it would be impossible to classify the pupils."

In Guernsey v. Pitkin, 32 Vt. 224, the At page 225 of the Annual Report for 1877 following language is used by Redfield, Ch. of the United States Commissioner of Edu-J.: "But in regard to these branches which cation, such a school is defined as "an arrangement of pupils according to their age and capacity to study certain things. The establishment and maintenance of a graded school, therefore, involves not only the grading of the pupils according to age, capacity or acquirement, but the adoption of a course of study and of rules for the advancement of pupils from grade to grade as they advance in acquirement. The nature and extent of the power possessed by school officers to direct and control the course of study in the schools in their charge has been many times considered by this court and the courts of other States.

In Ferriter v. Tyler, 48 Vt. 444, the court says: "It stands out so plain as not to be matter for debate, even if it be not expressly conceded, that schools, in order to realize the intent of the Constitution in their behalf, must be subjected to system and order under established rules."

In Donahoe v. Richards, 38 Me. 379, it is said: "If the right to direct the course of instruction and the books to be used is given, the right to enforce obedience to the determining power must manifestly exist, or the determination will be ineffectual. It would be more than idle to grant this power to direct if anyone can set at naught the action of the committee."

In Roberts v. Boston, 5 Cush. 198, it is said: "The power of general superintendence vests a plenary authority in the committee to arrange, classify and distribute pupils, in such a manner as they think best adapted to their general proficiency and welfare."

In Hodgkins v. Rockport, 105 Mass. 475, the Supreme Judicial Court of Massachusetts says of a statute which says that school officers "shall have the general charge and superintendence of all the public schools in town," that "this general power by necessary implication includes the power to make allˇreasonable rules and regulations for the discipline, government and management of the schools.

The case of State v. Webber, 108 Ind. 31, 6 West. Rep. 249, was a case involving the power of the school board to add music to the list of prescribed studies, and to suspend from the school those who refused to pursue that study. The court held that the making of a rule of that character was an exercise of the discretionary power possessed by the board, and denied mandamus to compel the re-admission of a pupil suspended for refusal to comply with it. In the course of the opinion, the court said: "It was competent, we think, for the trustees of the school City of Laporte to enact necessary and reasonable rules for the government of the pupils of its high school, directing what branches of learning such pupils should pursue, and regulating the time to be given to any particular study, and prescribing what book or books should be used therein. The power to establish graded schools carries with it, of course, the power to establish and enforce such reasonable rules as may seem necessary to the trustees in their discretion, for the government and discipline of such schools, and prescribing the course of inTo the same effect are the cases of Sewell struction therein. Where such v. Board of Education, 29 Ohio St. 89: Fertich trustees may have established a system of v. Michener, 111 Ind. 472, 9 West. Rep. 394; graded schools, or such modification of them King v. Jefferson City School Board, 71 Mo. as may be practicable within their respective 628, 36 Am. Rep. 499, and many other cases corporations, they are clothed by law with that might be cited. the discretionary power to prescribe the course The case of Trustees of Schools v. People, of instruction in the different grades of their | 87 I11. 303, 29 Am. Rep. 55, is one of a line public schools. The important of cases opposing the principle laid down question arises, Which should govern the in State v. Webber, supra, in so far as affects public high school of the City of Laporte as to the branches of learning to be taught and the course of instruction therein, the school trustees of such city, to whom the law has confided the direction of these matters, or the mere arbitrary will of the relator without cause or reason in its support? We are of opinion that only one answer can or ought to be given to this question. The arbitrary wishes of the relator in the premises must yield, and be subordinated to the governing authorities of the school City of Laporte, and their reasonable rules and regulations for the government of the pupils of its high school."

Upon the question of the discretionary power possessed by the school officers in the management of the schools placed in their

the right of the parent to elect what studies in the prescribed course may, and what may not, be pursued by his child, it being there held that the parent may thus elect. To the same effect are Morrow v. Wood, 35 Wis. 59 (which is probably the leading case taking that view); Rulison v. Post, 79 Ill. 567, and some other cases. These cases, however, while holding that a pupil cannot be compelled to pursue a certain study against the will of the parent, expressly recognize and declare the right to classify and grade, and that there can be no interference by the parent with that right. While the parent may say that his child shall not be required to pursue certain studies, as to such studies as the child does pursue, he must conform to the established rules, and must take them in

the order, in the classes and in the manner prescribed by the school officers.

The Statute authorizing the introduction of the German language as a branch of study was enacted May 5, 1869. It declares in express terms that when introduced, it is "as a branch of study.". Rev. Stat. 1881, § 4497.

the progression of pupils from grade to grade. In addition to this, the Act of March 3, In Trustees of Schools v. People, supra, it is 1871, confers express authority in the followsaid: “Under the power to prescribe neces- ing terms: "To establish and enforce regusary rules and regulations for the manage-lations for the grading of and course of inment and government of the schools, they struction in the schools of the City, and for may, undoubtedly, require classification of the government and discipline of such the pupils with respect to the branches of schools." Rev. Stat. 1881, § 4460, cl. 7. study they are respectively pursuing, and with respect to proficiency and degree of advancement in the same branches. All regulations or rules to these ends are for the benefit of all, and presumptively promotive of the interests of all. No parent has This was necessarily done in view of existthe right to demand that the interests of the ing laws, authorizing the establishment of children of others shall be sacrificed for the graded schools, with the attendant power to interests of his child, and he cannot, conse-regulate the course of study, assigning to quently, insist that his child shall be placed each branch of study its appropriate place. or kept in particular classes, when by so do- As a branch of study, it is like the other ing others will be retarded in the advance- branches of study prescribed by the same Act, ment they would otherwise make; or that subject to similar regulation by the school his child shall be taught studies not in the officers. To hold otherwise would be to prescribed course of the school. The hold that by the Act of May 5, 1869, there rights of each are to be enjoyed and exercised was an implied repeal of the Statute giving only with reference to the equal rights of all power to grade to school officers in so far as others." this one branch of study is concerned. It is, And in Morrow v. Wood, supra, it is ex- of course, too well settled to require citation pressly stated that "the parent did not pro- of authorities that repeals by implication pose to interfere with the gradation or clas- are not favored, and that the two statutes sification of the school, or with any of its must, if possible, be construed in pari materia rules and regulations, further than to assert so that full force and effect can be given to his right to direct what studies his boy each. Again, by what rule of construction should pursue that winter;" that is, that can it be said that when the Legislature two he should be allowed to omit a certain study years later conferred power to establish regand thus stay out of certain of the estab-ulations for the grading and course of inlished classes. If the opinion of the majority of the court in this case should stand as declaratory of the law, it will be unique, as being the first and only case under a statute which confers on school officers general power over and control of the public schools to declare the right of the parent instead of the school officer to control the gradation and classification of the pupils. It is against all the authorities, and, in principle expressly overrules State v. Webber, supra.

Power to establish and maintain graded schools has been possessed by the school officers of this State for more than thirty-five years; the Act of March 5, 1855 (1 Gav. & H. Stat. 542), containing this provision: Sec. They may also establish graded schools, or such modification of them as may be practicable."

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struction in the schools of the City, it intended to and did except one branch, and deny to the school board any control over it? Indeed, as I understand the position and argument of appellee's counsel, it is that the duty is imperative to provide for the teaching of all of the studies prescribed by the Statute in each grade. In this they are at least logical, and if they are right, the power to grade schools and establish a course of study is reduced to a very attenuated shadow, as each person whose children are attending a given school, who wishes them to be taught in any one of the required studies placed in grades in advance of that to which they beTong, can compel a change in the course of study for his accommodation. The separate and individual opinion or caprice of the parents will be substituted for the judgment of the officer, while the order and system of the school-room will give place to anarchy.

The Act of March 6, 1865 (1 Davis, Stat. 778), contains the following: "Section 14: The trustees shall take charge of the educa- The attempt to limit the application of the tional affairs of their respective townships, principle declared to the one study is intowns and cities. They may also effectual. It is made to turn on a question establish graded schools, or such modifica of verbal criticism, by which process the contion of them as may be practicable; and pro-clusion is reached, that by the words “any vide for admission into the higher depart-school" as used in section 4497, supra, is ments of the graded school from the primary meant the particular building or room, with schools of their township such pupils as are sufficiently advanced for such admission." The law which authorizes the establishment of graded schools by necessary implication carries with it the power to establish and enforce all necessary and reasonable regulations for grading such schools, and for establishing a course of instruction therein; to assign to each study its place in the course and to prescribe reasonable rules for

its complement of teachers, pupils, etc., which chances at the time to be occupied by the pupils whose parents have presented the petition, whether the building contains those belonging to only one out of many grades, or, like the ordinary district school, contains those of all grades in one room.

The further conclusion is also reached, that school No. 22, although shown to contain only certain pupils belonging to certain of

other studies and provision made for continued and progressive instruction in it? In this case is it expected that the pupils in school No. 22 will acquire a practical knowledge of that study in the brief time they will remain in that grade?

It is manifest that in that short time they could at best acquire but a slight and superficial knowledge of the rudiments of the language, which could be of no practical value whatever. We cannot think that this is what the Legislature had in view.

the lower grades in the city school system, | not thereupon to be placed in the course with is a separate and distinct school within the meaning of the law. This process of examination of the Statute is entirely too microscopic to afford a solution to the problem. The Legislature, in the enactment of this law, was prescribing a general rule, intended to govern all the schools of the State. In perhaps the majority of the towns of the State one large building, containing many rooms, accommodates all the grades; the pupils starting in the primary room and passing in time from room to room, as they pass from grade to grade. Suppose, while we find this con- In the course of instruction prescribed by dition existing in a given town, that in a the appellant seven years are devoted to that neighboring town we find, instead of one study. That is, the course of instruction in large building, many small ones, each sep- that study extends over that time. When the arate from the others; each with its comple-parents of school No. 22 asked to have it inment of teachers and pupils, and each accom- troduced in that room did they expect that modating a single grade. With promotion, when, in a few months promotion carried its pupils pass from building to building, their children to other grades, instruction in as they pass from grade to grade. By the that language would end? When the Legisrule of construction thus adopted one town lature provided for the admission of that has a single school and the other has many study into schools on petition, it certainly schools. In the town with the single large meant that it should come in as a branch of building, the parents of twenty-five children study not in a given grade, but in the school, attending that school can, upon petition, viewing the school as an entirety from the have the German language introduced as a time the pupil entered it until he left. It cerbranch of study, while in the other, although tainly meant to leave the question as to when the parents of many times that number peti- and where it could be most efficiently taught tion for it, unless at least twenty-five of them to the officers entrusted with the management are in one of the buildings they cannot have of the schools, as they entrusted to them simiit. If the requisite number of children are lar discretion with reference to all other found only in one of the buildings, they can studies. And when these officers show the have the study introduced into that building adoption of a plan, providing for the and grade, and in none of the others. Did thorough teaching of this study to all the the Legislature intend any such thing? It school children as soon as they reach a cerwas evidently the intention that a much tain grade, and that to this end they have broader view should be taken. The child, provided buildings convenient of access to when it enters a graded school, does not enter all, is it just or fair to characterize this as it with a view to completing its education a proposition to teach the study only to some in a single grade; but expecting that, as in- other children in some other part of the City? tellect developes and additional acquirement comes, it shall pass from grade to grade, from room to room or, if you please, from school to school. It is, of course, unfortunate that many pupils are unable to complete the course, and in that way are deprived of the instruction which can only be given to them in the later years of the course. For this, no remedy can be devised. It is true of all studies which in the course prescribed lie beyond the point where they drop out. Under any system of grading which will give time for efficient instruction, some studies must wait while others are being taken. To require children of primary grades to pursue simultaneously all of the required studies would be to impose on their untrained intellects an unreasonable and unjustifiable

Much false reasoning in this case comes from considering it as a question of adding a particular study to the course instead of adding an additional study. Suppose this statute, instead of providing for the introduction of the German language, provided for the introduction in precisely the same manner of some of the higher branches of mathematics; strike out the words "German language," and insert instead, algebra, or trigonometry or geometry, would anyone seriously insist that the Legislature meant that when a petition was presented by the requisite number of persons for its introduction as a branch of study, the Board would not only be required to admit it, but might, on demand, be compelled to provide for teach. ing it to the primary grades? Suppose the It is upon this that all systems of grad- last Legislature had amended the law by ing are based, with a view to the gradual additional proviso in precisely the same development and unfolding of the child's words, except that it had called for the inmental powers. There can be no forcing of troduction of the Hebrew language; a large, this development. The task of devising the intelligent and useful class of our citizens best means of accomplishing this end the law would have special interest in such a law. has entrusted to the school board. It was Indeed, the great mass of our people, beundoubtedly the legislative purpose, in au- lieving that the Hebrew Scripture is the Word thorizing the introduction of this branch of of God, would have special interest in such study, to give opportunity to acquire a prac-a law. If the reasoning in the opinion of tical knowledge of it. How could this be accomplished if, when it was petitioned for by the requisite number of persons, it was

tax.

the majority of the court is sound, the Board of School Commissioners would not only be compelled to admit it as a branch of study,

but would be powerless to determine where in the course of study it should be taught, and might on demand be compelled to provide for teaching it in the primary grades. All the reasoning as applied to the German language would apply with equal force to the Hebrew language, or to the Italian or French, or the language of Sweden.

there is room for but one nationality, where all have common interests and should have one common language.

In my opinion, the German language is, by virtue of the petition presented and the demand made, one of the required studies in the City of Indianapolis; but that, as such, it stands upon precisely the same footing as all the other required studies, and should be given its proper place and fair proportion of the time in the course of instruction; that while the Board of School Commissioners could be compelled by mandate to admit it to the course, if they refused, their discretion could not, and cannot be further controlled. Mandate will not lie to control or direct the exercise of a discretionary power by a public officer. State v. Demaree, 80 Ind. 519; Madison v. Smith, 83 Ind. 502; Jelley v. Roberts, 50 Ind. 1; Burnet v. Wabash & E. Canal, 50 Ind. 251; Mitchell v. Wiles, 59 Ind. 364; Fort Wayne v. Cody, 43 Ind. 197; Brinkmeyer v. Evansville, 29 Ind. 167; Michigan City v. Roberts, 34 Ind. 471.

I do not question the power of the Legislature to limit the control of school officers in the management of schools. It has created these officers and conferred such powers as they have. Notwithstanding the fact that time has demonstrated the wisdom of their course, and that the large measure of dis cretion vested in those officers has been a potent factor in the magnificent development of our school system, the power which created can destroy them, or may in any manner curtail their power. It is not here a question of legislative policy, but of the construction of a legislative Act. Although, indeed, if one interpretation given to this Act by counsel for appellee in argument could be correct, there might be a question of legislative power. I refer to the construction which would view this law as enacted for the benefit of Germans. As a branch of study, there can be no objection to the introduction of the German language into our schools. It is a noble language, of a great people. It is not only commercially advantageous to our children to be able to use it, but it introduces them to a literature singularly rich and strong. But neither Germans, French, English, nor those of any other foreign nationality can, as such, have any rights in If the discretion of the School Board can our public schools; and any legislation at-be controlled in the matter of this particutempting to recognize or confer any such right would be void.

Our Constitution, providing for a system of common schools, contemplates a school system for the education of the children of American citizens only, and such an education as will fit them for the duties of American citizenship. That which has made the German emigrant so welcome an addition to our population is the readiness with which he be comes Americanized, and the sincerity of their devotion to their adopted country has been sealed in blood on many battle fields. As American citizens, their rights in our common schools are the same as if they were native born. But the doors of the common school can only legally open to those of foreign blood when they renounce their alien allegiance and pledge fidelity to the United States. I cannot think that the Legislature intended by this action to introduce the race question into our schools, or to recognize the principle that any other key than that of American citizenship should, under any pretense, open the schoolhouse door. Sound public policy demands the emphatic declaration that in this country and under our flag 13 L. R. A.

Mandate will lie to compel an officer to act, but not to control the manner of his acting except to discharge a duty specifically enjoined by law. See cases above cited, and also State v. Demaree, 80 Ind. 519; Indianapolis v. Patterson, 33 Ind. 157.

This is the rule as applied to school officers equally with other public officers. State v. Andrews, 108 Ind. 31, 6 West. Rep. 249; Fertich v. Michener, 111 Ind. 472, 9 West. Rep. 394; Braden v. McNutt, 114 Ind. 214, 13 West. Rep. 798.

lar study, it can be as to all of the prescribed studies; and there is necessarily subordination of the power of the School Board in grading, to the will of each individual parent who has a child in attendance in the school. This practically destroys it.

The difference between the views entertained by the majority of the court and my opinion, briefly stated, is this: As they construe the law, a petition and demand will only require the admission of the study of the German language to the particular building in which the petitioners' children are at the time instructed, and to no other part of the school; and the Board of School Commissioners are powerless to say where that shall be; while, as I construe the law, when the petition is presented and the demand is properly made, that language must be placed in the course with the other required studies for the equal benefit of all, and that the school officers have the same power to assign it its place in the course that they have over any other study.

For the foregoing reasons, I cannot concur in the opinion of the majority of the court. Olds, J., concurs in this opinion.

MASSACHUSETTS SUPREME JUDICIAL COURT.

Inhabitants of EASTHAMPTON

. v.

HAMPSHIRE COUNTY COMMISSIONERS.

(....Mass.....)

Express authority is not absolutely necessary to justify the taking of a strip of land from a schoolhouse lot for a townway.

(September 24, 1891.)

special circumstances county commissioners or other like officers acting under general powers could lay out a highway through a public reservoir so as to ruin it. See State v. Montclair R. Co. 35 N. J. L. 328; and as further examples on this side, Re Boston & A. R. Co. 53 N. Y. 574; Prospect Park & C. I. R. Co. v. Williamson, 91 N. Y. 552. On the other hand, if a tract of land were held for public purposes, which was so broad that it was impracticable to go around it and which could be crossed without serious harm by the edge of a stream that flowed through

RESERVATION by the Supreme Judicial it, it well might be held lawful for the way

Court for Hampshire County (Knowlton, J.) for the opinion of the full court of a petition for a writ of certiorari to quash proceedings of the County Commissioners in laying out a town Petition dismissed.

way.

The case sufficiently appears in the opinion. Mr. David Hill for petitioners.

Mr. W. G. Bassett for respondents.

Holmes, J., delivered the opinion of the court:

The short question before us is whether county commissioners can take a strip of land from a schoolhouse lot for a townway. Taking the strip will injure the lot considerably for school purposes, but will not prevent its use, so far as appears. We must as sume that the way is necessary, and, if it be material, we must assume that taking this strip is reasonably necessary for the way, whoever may be the final judge on the latter question when it is raised.

The case thus presented lies in the doubtful region between two extremes which are free from doubt. Ordinarily a highway or railroad could not be laid out longitudinally over a previously established railroad or highway by virtue of general statutory powers or without special authority from the Legislature. West Boston Bridge v. Middlesex County Comrs. 10 Pick. 270, 272; Springfield V. Connecticut River R. Co. 4 Cush. 63, 71; Boston & M. R. Co. v. Lowell & L. R. Co. 124 Mass. 368, 371. On the other hand, in the absence of special regulations and by virtue of a general authority to lay out such roads, necessary crossings could be made. When we come to more difficult cases we draw little aid from the varying statements of general principles under which authority will be implied to take land for a second public use. Boston & A. R. Co. v. Boston, 140 Mass. 87, 89, 1 New Eng. Rep. 94; Providence & W. R. Co. v. Norwich & W. R. Co. 138 Mass. 277, 279; Boston & M. R. Co. v. Lowell & L. R. Co. 124 Mass. 368, 370; Wellington Petitioner, 16 Pick. 86, 105.

We must consider the relative importance and the necessities of the two uses generically, the extent of the harm to be done, accept any light that history may throw, and make up our minds under all the circumstances of the particular case as best we can. To put cases nearer to the present and lying between the two extremes which we have mentioned, it would be a strong thing to say that without

to cross it. 68 Ga. 539.

Wood v. Macon B. R.

The proviso of our Act of 1834, chap. 187, 1, the original of Pub. Stat., chap. 82. SS 29, 30, implies very clearly that any railroad or other public easement already located" through a graveyard was located lawfully. The law seems to be different in Connecticut. Evergreen Cemetery Asso. v. New Haven, 43 Conn. 234. When it is considered that very large tracts of land often are ap-` propriated to school purposes (see Statute October 3, 1782, 1 Mass. Spec. Laws, 33, 34; March 23, 1784, 1 Spec. Laws, 72; March 11, 1791, 1 Spec. Laws, 303; November 17, 1792, 1 Spec. Laws, 399; March 3, 1801, 2 Spec. Laws, 425), it is impossible to accept an unqualified rule that no part of such land can be taken for a way under any circumstances without an express enactment. In the only case which we have found precisely parallel to this it was held that the strip was law. fully taken from the school lot. Rominger v. Simmons, 88 Ind. 453. See also Indiana Cent. R. Co. v. State, 3 Ind. 421, 425.

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The converse case of an attempt to place a schoolhouse within the limits of a highway is by no means so strong. Apart from any comparison of the two public uses, usually there can be no necessity for the selection of such a place, since there is a much greater freedom of choice as to where a schoolhouse shall be put than where roads shall run. But to show the views which have prevailed in Massachusetts we quote the following:

"November 9, 1702. The motion presented in writing by Nathl. Byfield and Ebenezer Brenton, Esqrs., for a resolution of this question, viz. : whether the setting up a court-house or schoolhouse in the street of any town within this Province where the street is so wide as to leave not less than twenty-five feet clear for passage on each side of sd. edifice, be not allowable within the true meaning and intent of the Act entitled An Act to Prevent Incroachments upon Highways, Streets, etc. and of the proviso in the said Act, -was returned from the representatives with the concurrence of that House to the Resolve past thereon by the board on the 4th currt. to wit,

"Resolved, that the above building, being a public use, and within the reason of the proviso in the said Act, and that the erecting of the same shall be accounted by this court no breach of the said Act which resolve is

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