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school in said district) to introduce and teach MAJOR v. CAYCE et al.

in said common school certain other higher (Court of Appeals of Kentucky. Dec. 4, 1895.) studies or branches of learning, which are not COMMON SCHOOLS-EXTRA STUDIES-TUITION.

embraced in the course of study in such Under St. 1894, § 4364, declaring that

schools under the statute, and which have not every person of school age within a district may been prescribed by the state board of educaattend a common school without charge, and tion, viz. "algebra, higher arithmetic, Latin, that any person by consent and by paying tui

bookkeeping, etc."; and that defendant tion may attend; and section 4382, declaring that the state board of education shall prescribe George V. Donnell has established classes, studies; and section 4445, providing that the and is teaching same these branches in the school trustees shall employ a teacher, agreeing school along with, and in addition to the with him as to compensation; and section 4506, providing that teachers shall enforce the course

studies required by law to be taught in such of study prescribed, but that no teacher shall common schools. Plaintiff further alleges be required to teach any other than the studies

that before filing this proceeding he laid his prescribed by the state board, unless it be so

complaint before the trustees, and requested specified in his contract with the school trustees,-the trustees may, in their contract, allow them to compel the teacher to so give the the teacher to instruct other branches, and instructions to his daughter in these higher charge pupils fees therefor, the efficiency of the

classes, without extra compensation, which instruction in the prescribed branches not being

they refused to do. Plaintiff contends that thereby impaired.

under the constitution and by the provisions Appeal from circuit court, Christian county.

of the common-school law his daughter is en"To be officially reported.”

titled to this right as claimed. We are cited Action by Thomas H. Major against J. W.

by plaintiff to the following sections of the Cayce and others. Judgment for defendants.

common-school law of this state: Chapter 113, Plaintiff appeals. Affirmed.

Ky. St. § 4363. This section provides that J. I. Landes and John Feland, for appellant. there shall be maintained throughout the M. D. Brown, for appellees.

state of Kentucky a uniform system of com

mon schools, in accordance with the constituGRACE, J. The appellant, Thomas H. Ma- tion of the state and this chapter. Section jor, being a citizen and resident of common- 4364 provides that "no school shall be deemed school district No. 78, Christian county, and a common school, within the meaning of this being the father of four children resident chapter, or be entitled to any contribution out therein, and within the school ages between

of the school fund, unless the same has been, 6 and 20 years, and the father being thus en- pursuant hereto, actually kept, or is under titled under the law to the benefits of said

contract to be kept, by a qualified teacher common school for the education of his chil

therein,

for five months during the dren, which was being taught in said dis- same school year, and at which every child in trict by one G. V. Donnell, under a contract

the district between the ages of six and twenwith appellees, as trustees of said district, yet ty years has had the privilege of attending, appellant complains that he is denied, and whether contributing towards defraying its that his children are denied, the full benefit expenses or not: provided, nothing herein of said common school, to which, under the shall prevent any person from attending a law, they are entitled, in this: that he says common school, who will obtain the consent his eldest daughter, being sufficiently ad- of the trustees, and the teachers, and pay the vanced, and having capacity to study algebra required tuition fees.” This section again and higher arithmetic, and that both himself reports that tuition shall be "free of expense and his daughter desiring to do so, yet she is to every pupil child.” Section 4366, among refused the benefit of instruction in these other things, provides that when the school particular branches, unless he will pay addi- shall require an assistant to serve regularly tional and specific compensation for such in- at a salary, such assistant shall hold a cerstruction to the said teacher, which, he be- tificate of qualification, and be employed by ing unwilling to do, he therefore seeks by the trustees. Section 4382 provides "that the this proceeding against the trustees and the state board of education shall, among other teacher to compel them to furnish such in- duties, prescribe and publish a public graded struction in these branches to his daughter. course of study for common schools, specifyPlaintiff states in his petition that these par- ing the order of studies, and the time to be ticular studies are in addition to those pre- allotted to each, which course of study shall scribed by the state board of education, which be observed by the teacher, and enforced by he says embrace "spelling, reading, writing, the trustees.” Section 4383 designates what arithmetic, English grammar, English compo- the instruction prescribed by the board shall sition, geography, physiology, hygiene, civil embrace, and the same is correctly set out by government, United States history, and his- plaintiff in his petition, and has been quoted tory of Kentucky, and the nature and effect herein. Section 4445 provides “that the trusof alcoholic drinks on the human system." tees in this corporate capacity, at a meeting And plaintiff says that the said trustees have called for that purpose, shall employ a qualiauthorized and permitted the defendant fied teacher, agree with him as to compensaGeorge V. Donnell (the teacher employed by tion." Section 4506 provides “that teachers them, as aforesaid, to teach the common shall faithfully enforce in school the course of study, the use of the text books adopted in tiff any compensation whatever for teaching the county, and the regulations prescribed in his children all the branches required by law pursuance of law. * * * But no teacher to be taught,--the same that are taught to shall be required, or under any obligation to every other pupil in the school. Neither did teach any other than the common school he refuse to teach and give instructions to branches prescribed by the state board of edu- the children of appellant in every branch of cation in the common schools, unless it shall education required by law to be taught in be so specified in a written contract with the common schools, nor did he demand any trustees." It may be noticed that while the coinpensation therefor. In the language of petition of plaintiff, in speaking of the au- the law, all this was given and tendered, thority and permission given by the trustees and ready to be performed by the teacher, of this school district to the teacher to teach free of any and all charges to appellant, for these other and higher branches of education his children, as well as to every other child than those prescribed by the state board of within the school age in the district. There education, yet it does not say, in so many was not recorded, under this contract bewords, that the teacher was authorized by tween the trustees and the teacher, any other the trustees to charge and receive compensa- right or privilege to the children of any tion therefor; and while it may be fairly in- other parent resident within the district than ferred therefrom that such was the case, yet was accorded to the children of appellant. this point is made clear by appellant's coun- Keeping in view these essential requirements sel in their brief, wherein they say: "In this of the law, that the tuition as prescribed by case, as shown by the allegations of the peti- the state board of education must be taught tion, the trustees of common school district in all common schools of the state, and that No. 78 of Christian county employed Donnell every child resident within the several school to teach the school for five months, beginning districts within the school age shall be entiSeptember, 1895, and allowed him in the con- tled to attend and to receive instruction in tract of employment to teach what are called all these branches free of cost, all beyond the higher branches,' not prescribed in the this was subject to the control, authority, course of studies for common schools, and al- and management of the trustees. They se lowed him to charge tuition fees for teaching lect and make the contract with the teacher, these higher branches; and that the teacher and fix his compensation; they determine refused to permit a daughter of appellant, when, and under what circumstances, an aswho is a pupil, within the school age, of the sistant shall be employed; and, of course, in school, to study some of these higher branch- both cases the trustees must fix the salary to es which are mentioned in the petition with- be paid, both the teacher and the assistant, out the payment of extra tuition therefor to looking in all cases to the school fund. All the teacher, which appellant refused to do.” this matter is under the jurisdiction of the

Assuming, as we do, that under the school trustees. True it is that we find that under law the pupils, all within the age and resi- section 4506, before quoted, the trustees may, dent in the district, are entitled to attend in their discretion, and by written contract these common schools, and to receive tui- with the teacher, require that he shall teach tion in all the branches prescribed by the other branches than those prescribed by the state board of education to be taught there- state board of education. This is a matter in, free of expenses, and without contribut- in their discretion, and can only be done by ing anything to the expense of such school; contract with the teacher, where the school and assuming, as we do, that the trustees fund is sufficient to pay such a teacher. And must in good faith in their conduct with ref- where, by the contract in writing between erence to these schools in all respects ob- the trustees and the teacher, they undertake serve and carry out the provisions of the to have other and higher branches taught school law, appropriating to the support of than those prescribed by the board, paying such common school the entire fund provid- therefor out of the common-school fund, then ed by law for defraying the expenses of doubtless every pupil child who has capacsame,-yet we are at a loss to understand ity to study such higher branches, would be what right it is that plaintiff is entitled to, entitled to receive such instruction free of under this school law, that he has been de- charge. But in this case no such requireprived of. It is not alleged that the trus- ment was made, no such contract made betees have in bad faith, or even unlawfully tween the trustees and the teacher, and we or wrongfully, or at all, in their contract think herein is where appellant's counsel with the teacher, omitted or neglected to de- have misapprehended the rights of their climand and require of the teacher to do every- ent. So far from the trustees contracting thing incumbent on him as such teacher. with the teacher to give instruction in these They did not omit from the studies or higher branches of education, making him branches to be taught by him any study or compensation therefor, this was expressly branch of education that the state board of disavowed in the contract that they did make education required to be taught in the com- with him. And as a part of their contract mon schools of the state. Neither was the with the teacher, by which, instead of his teacher authorized to charge or demand, nei- being required to do this as a part of the ther has he charged or demanded, of plain- service to be rendered by him for the stipulated price to be paid, it was, on the con- ways that it in no wise impairs the duty trary, expressly agreed that this teacher

that this teacher obligation or efficiency of the teacher in the should have the privilege of teaching these common-school branches required by law to "higher branches," and, as a part of his com- be taught. The petition does not charge that pensation, that he should have the right to the efficient service in this matter has been charge and receive compensation for such impaired. Judgment affirmed. service from all those who sought to avail themselves of his services in these branches. Such persons paid, and none others. We are

BRYAN v. COMMONWEALTH. unable to see any wrong in all this done to (Court of Appeals of Kentucky. Dec. 4, 1895.) appellant. And while we do not find this

CRIMINAL LAW – NEW TRIAL – MISCONDUCT OF thing expressly authorized, we do not find it PROSECUTING WITNESS - SEPARATION OF WITprohibited by the school law, nor can we

NESSES — INSTRUCTIONS - APPEAL – HARMLESS

ERROR. see that it in any way impairs the equal

1. On a motion for new trial there was evibenefit of this common-school system to ap- dence that after the last argument was made pellant with all others; while we do find for the defense, and before the closing argument that by section 4364 any person may attend for the prosecution, the prosecuting witness these common schools who can obtain the

eagerly shook the hands of several of the ju

rors, and spoke to them in an "earnest and exconsent of the trustees and of the teacher,

cited” manner. The witness could not hear and who will pay the tuition charged. It is what was said by him. It did not appear where noticed that it is not provided by law wheth

the transaction occurred. Held, that there was

not such misconduct of the prosecuting witness er this tuition so paid by such a one shall

as to entitle defendant to a new trial. go to the common-school fund, or be paid 2. In a criminal case the witnesses were exto the teacher. Doubtless it is left to be dis- cluded from the court room, and charged to posed of as the trustees and the teacher may

talk to no one except to the attorneys was to

what they would swear or what they had determine by contract. And if, by this au- sworn.” Afterwards the prosecuting witness thority, persons not entitled by law to tui- talked with several of such witnesses, but it tion in the common schools can obtain same,

was not shown what he talked to them about.

Held, that the acts of the prosecuting witness we see no reason why by the same method

did not entitle defendant to a new trial. contracts between trustees and the teacher, 3. Where defendant and two other witnessprovision may not lawfully be made, as in

es testified that after the shooting he left his this case, whereby the teacher may give les- home, and went to a certain county, on the

advice of his father, it was harmless error to sons in the higher branches of education, for exclude the testimony of another witness to his own profit. In fact this higher branch the same fact. of education is contemplated by the com

4. It is not error to fail to define the words, mon-school law, and it is marked out, and struction in the language of the statute on the

"without previous malice,” as used in an inthe way and manner in which it may be question of shooting in sudden heat, where, ungenerally obtained for any particular school

der the testimony, the shooting was either done district is set forth by article 10 of this

willfully and maliciously or in self-defense. same chapter 113, entitled “Graded Common Appeal from circuit court, Hopkins county. Schools," wherein it is pointed out when,

"Not to be officially reported." where, and under what circumstances this George Bryan was convicte. of willfully graded common school may be established; and maliciously shooting at and wounding the same to be based on the consent of the one C. A. Carlisle with intent to kill him, people interested, and to be supported by a and appeals. system of taxation, as supplementary to the Ward Headley and Waddell, Nunn & Wadcommon-school fund, properly speaking. In

dell, for appellant. William J. Hendrick, these graded common schools it is contem- | for the Commonwealth. plated that these higher branches may be

taught. This stage of graded common school, PAYNTER, J. On the charge of willfully

however, has not yet been reached in the and maliciously shooting at and wounding district wherein this particular school is be- one C. A. Carlisle with intent to kill him, ing taught. No taxes have been levied for the accused, George Bryan, was indicted, this purpose. Until that is done, and while tried, convicted, and his punishment fixed at no fund is provided for it, we see nothing confinement in the penitentiary for a period illegal in the trustees, by contract with the of three years. A reversal is asked, beteacher, permitting him to give lessons in cause--First, that C. A. Carlisle, the prosecutthese higher branches, not prescribed by the ing witness, was guilty of misconduct durcommon-school law, to those pupils whose ing the trial; second, that the court erred parents desire them to take such instruction in refusing to permit Will Jenkins to testify at their own expense. We have not spoken that Tom Bryan, the father of the accused, of the policy of this plan, nor do we com- advised the accused to leave home after the mend it as altogether safe. We only say it shooting; third, that the court erred in not is not illegal. We think this matter may be explaining or defining the words, "without fairly left to the sound discretion of the previous malice,” in the instruction used on trustees. Of course, we regard it a power the question of shooting in sudden heat and that should be exercised with great prudence passion. and caution, and care should be taken al- We will briefly consider the questions in the order stated. In support of the motion, the practice in the trial court to charge the and ground for a new trial the accused filed witnesses not to talk to each other during the affidavit of Thomas Bryan, in which he their exclusion from the court room. The stated that after the last speech had been section quoted is the only one found in the made for the defense, and before the last one Criminal Code of Practice in relation to the had been made, the prosecuting witness, C. exclusion of witnesses from the trial and A. Carlisle, "eagerly, excitedly, and warmly" | their separation. There seems to be no proshook the hands of several of the jurors try- | vision of the Civil Code except for the excluing the case, and spoke to them in an "ear- sion of witnesses from the court room so as nest and excited” manner. It is further stated to prevent them from hearing the testimony by the affiant that he "could not hear what of the witness under examination. We adwas said by him (Carlisle), but judged ne here to former decisions of this court as to was speaking, by the motion of his lips, and the duty of the court to exclude from the his gestures and manner.” It does not ap- presence of the witness testifying the ower pear when this alleged action of Carlisle witnesses in the case. The accused testified took place. It does not appear whether it that after the shooting he left his home, and was in the courthouse, while the jury were went to Todd county, upon the advice of his in their seats, or in the courthouse after father. He also proved the same fact by his the adjournment of the court, or outside of father and brother. The testimony of Will the courthouse. The affiant could not, nor Jenkins on the same point would have been does he pretend to, say that Carlisle was cumulative, and the action of the court in talking about the case then under considera- refusing to allow him to prove the same tion. The presumption is that he was not facts as the accused had proven, and supdoing so, or the jurors would have reported ported by the testimony of his father and such improper conduct to the court. It ap- brother, we do not think is a reversible error. pears from the record that the witnesses We do not think his substantial rights have were excluded from the court room before been prejudiced thereby. the trial began, and "charged by the court It was not error in the court in failing to to talk to no one except the attorneys as to define the words "without previous malice,” what they would swear, or as to what they as used in the instruction on the question of had sworn.” It is contended that, in viola- shooting and wounding in sudden heat and tion of that charge, C. A. Carusle talked to passion. The instruction followed the lanthe witnesses. There is no evidence that he guage of the statute. It was a matter of talked to them, except his own. When he fact for the jury to determine as to whether was called in rebuttal, on the cross-examina- the shooting was done without previous maltion by counsel for the accused, he said: “I ice. Besides, under the testimony, the shoothave talked with witnesses since I and they ing was either done willfully and maliciously were charged by the court not to do so. I or in self-defense. The judgment is affirmed. don't know how many." He is not asked, nor does he state, whether he talked to the witnesses as to what they would swear or as to what they had sworn. Certainly a con

THOMPSON et al. v. KOCH. . versation on other subjects would not be in (Court of Appeals of Kentucky. Dec. 3, 1895.) violation of the order of court. Beslues, we

INTOXICATING LIQUORS — LICENSE – APPEAL FROM know of no law which provides that the trial DECISION OF LICENSE BOARD-DISCRETION. court shall or may exclude from the presence 1. A constitutional provision prohibiting of a witness testifying other witnesses under

the legislature from creating other courts than a charge that they must talk to no one as to

those mentioned in the constitution does not

prevent the legislature from authorizing apwhat they will prove or have proven, except peals to the circuit court from the decision of the attorneys. On an examining trial the a license board on an application for a license. magistrate may cause witnesses to be kept

2. Since appeals may be taken to the suout of hearing of the witness testifying, and

preme court from all judgments of the cir

cuit court, unless prohibited by statute, a judgalso separate from each other; and he shall ment of the circuit court, reviewing the decision do so on request of the prosecuting attorney,

of a license board on an application for a liqor of the defendant. Section 62, Cr. Code,

uor license, is appealable.

3. Under St. § 3031, placing the grantreads as follows: "During examination the ing of liquor licenses in the discretion of the magistrate may cause the witnesses to be license board, on appeal from its decision rekept out of hearing of the witness testify

fusing a license, the case is not to be tried de ing, and also separate from each other; and

novo, but the court must act on the evidence

before the license board. he shall do so upon request of the prosecut- 4. The circuit court should only reverse a ing attorney or or of the defendant."

” Of

decision of the license board refusing a license course, the object in ordering witnesses sep

in case of an arbitrary abuse of discretion. arated during an examination was to keep Appeal from circuit court, Jefferson county. them from talking about the case, and as to "To be officially reported." what they had or would testify. The fact Application of August Koch to R. H. Thompthat the legislature provided specially for son and others, constituting a license board, such action on the part of a magistrate hold- for a liquor license. The license was reing an examination indicates it was not to be fused, and applicant appealed to the circuit court, which granted the license, from whose perceive no objection to that character of leg. judgment the board appeals. Reversed. .

islation requiring or granting appeals from

the judgments of boards of cities and towns, Abbott & Rutledge, for appellant. O'Neal,

whether of the one class or the other, where Phelps & Pryor, for appellee.

those boards are vested with the power of

hearing and determining questions, affecting the PRYOR, C. J. Under the provisions of the rights of the citizen, that pertain to the parstatute for the government of cities of the ticular municipality in which those rights are first class in reference to the retailing of spir- asserted or denied. The power to grant ituous liquors, it is provided: “The judge of licenses must be vested in some body

con: the city court, the chairman of the board of nected with or created for the purposes of public safety, and the president of the com- municipal government, and, besides, this appeal missioners of the sinking fund, are constituted

comes from the circuit court, and its judgments a license board, the judge of the city court to are subject to the revisory power of this court, be the chairman, and the secretary of the sink- unless prohibited by law. An appeal lies to ing fund shall be ex officio secretary.” St. Ky. $ this court from the judgments of circuit 3030. Section 3031 defines the manner in courts in all cases other than those excepted which the application for a license shall be by the statute. This law of license is a genmade, and the qualifications of the applicant. eral law, applicable to all cities of the first Section 3033 provides that no license shall be class; and, the circuit court entertaining jugranted to any person who has not the quali- risdiction of the appeal, the right of appeal fications prescribed in section 3031, and fur- to this court is unquestioned, as it is not ther provides: "No license shall be granted to within any of the exceptions to the statute in retail liquor in any precinct, if in the opinion which this court is denied appellate jurisdicof the board, the retailing of liquor at the tion. Counsel for the appellant insists that place named will be injurious to the people the circuit court had no power to reverse thereof, or if a majority of the voters of the the judgment of the board rejecting the precinct registered at the last annual regis- license, because that tribunal was invested tration remonstrate against the granting of with the discretionary power of granting or the same.” An appeal may be had to the cir- refusing such applications, and to take this cuit court, as is provided in the following sec- discretion from the board, and place it with tion. The section following, which is section the judge of the circuit court, was never con3034, provides: “Any license granted by said templated by the legislature. While it is not board may be revoked by it, after an open necessary to determine this question, it seems trial with due notice to the licensee, when- to us clear that, when such discretion is conever in the judgment of said board, the licen- fided to certain boards, for the purposes of see has conducted a disorderly house, or vio- municipal government, and an appeal allowlated the law with respect to the sale of liq- ed, it should appear that the judgment of the uor, and either party who shall feel aggrieved board was the exercise of an arbitrary disby the decision of the board may have an cretion before the circuit court would disreappeal to the circuit court.” It is conceded gard its judgment, and therefore the circuit the power to grant the license is with this court should have before it the testimony license board, and, from the express language upon which the board acted; for, otherwise, of the statute, the board, in its discretion, may this discretion would be taken from those refuse the license when, in the opinion of its constituting the board, and confided alone to members, the retailing of liquor will be inju- the circuit court. If the case is to be heard rious to the people of the precinct in which de novo, then the applicant, instead of seekthe liquor is proposed to be sold, or when a ing the judgment of the board as to his qualmajority of the registered voters in the pre- ifications, and the necessity for granting the cinct at the last annual registration remon- license, could decline to introduce his testistrated against the granting of this privilege mony, and submit to a judgment against him, to the applicant. The board, constituted as and, by an appeal to another tribunal, dethe statute requires, heard the testimony for prive the municipality of the judgment of and against the applicant in this case, and re- those selected by law to pass upon such quesfused to grant the license. An appeal was tions. When, therefore, this discretion is contaken to the circuit court, and there the case fided to certain boards, the facts upon which heard de novo, and a judgment entered grant their action was based should go to the ciring the license, and from that judgment an cuit court, in order to enable that court to deappeal has been taken to this court.

termine whether or not the judgment of the It is insisted, by counsel for the applicant, board was an exercise of arbitrary power. that no appeal lies from the judgment below If this mode of practice is not to be adopted, to this court; that the board of license is and we think this discretionary power canmerely advisory, is at best a tribunal with not exist without it, then it appears, from special and limited power, and cannot in any the testimony heard below, that a decision sense be deemed a court, because the present might well have been rendered for either parconstitution expressly prohibits the law-mak- ty; and, assuming the board acted alone upon ing power from creating any other courts the testimony heard by the circuit judge, still than those mentioned in that instrument. We there was nothing to show that any arbitrary

v.33s.w.no.147

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