THE LEGAL AUTHORITY, OF THE AMERICAN PUBLIC SCHOOL The Legal Authority of the American Public School as developed by A Study of Liabilities to Damages By JOACHIM FREDERICK WELTZIN, PH. D. Assistant Professor of Education University of North Dakota Specialist in the Law of Public Education Grand Forks, North Dakota The Mid-West Book Concern 1931 Copyright first edition, 1930; Enlarged and revised edition, 1932 by J. Frederick Weltzin PREFACE The tremendous system of public schools that has been built up in this country is by its very existence a most striking manifestation of the deep conviction of the American people as to the worth and necessity of an educated public. Recognition of the fundamental and primary importance of such education prompted the citizens of our several states to incorporate into their state constitutions provisions addressed as mandates to their legislative assemblies, directing them to establish and maintain state systems of public schools. The public school is therefore a creature of the law. It is created by the law and it is maintained by the law. The law grants to it all its powers, it defines all its duties, it provides all its privileges, and it likewise imposes all its liabilities. Nationally speaking, our modern public school system is a most complex institution which extends minutely and intimately into every part of our population. Controversies are certain to arise in relation to an organization which deals with the intimate interests and rights of many millions of human beings. Therefore we must certainly expect to find some dissension arising in the operation of our tremendous system of public education. It is a just cause of pride, however, that, comparatively speaking, there is strangely little such controversy. Yet when one surveys the situation the country over, and gathers together data from every state, one arrives at an estimate of a total amount of litigation which approaches a rather significant figure. It is conservatively estimated that one case out of each 150 that are tried in lower courts reaches a court of record, such as a supreme court. During the last few years there have come from the courts of record of this country reports of something like 230 to 260 school cases each year. It will be seen that if the ratio of lower court cases to decisions in courts of record be a correct one, there must come up for at least some degree of legal consideration in this country at large something like thirty or forty thousand school controversies each year. viii * * Vlll Preface It would seem to be a self-evident fact that educators generally and school administrators particularly should be somewhat familiar with the law of our public schools. It may be objected on the part of some, that an attempt to gain any sort of helpful knowledge of the field of school law must be a vain one, since the subject is too comprehensive. There is some truth in this assertion if one is thinking of professional completeness in such a study. This, however, should not be the aim of school administrators. We might say that what school executives and officers should strive for, is a preventative knowledge of the subject rather than a curative one. That is, these school people ought to be aware of the general legal nature of the public school, and of its powers, duties, and its liabilities. They surely should be aware of the extent of legal authority of this institution. They should have a sufficient knowledge so that they may avoid legal entanglements thru overstepping the bounds of duly vested authority. But after such entanglements have arisen, it is usually the recommended course to consult the professional in the field; his is a curative knowledge of the matter. Certainly, however, we can most assuredly agree that school administrators and officers should have upon their professional reference shelves a few volumes dealing with the subject of educational law. Nor is it too much to expect that such persons may readily acquire some skill in the use of such volumes in gaining information upon points in school law as they arise from time to time in the operation of their local school plants. Most school officers are fairly well acquainted with the school statutes of their respective states. Each state department of public education publishes periodically a pamphlet containing a compilation of these statutes. With these publications most school directors and administrators are fairly familiar. However, the fact that there is a great deal of law, indeed perhaps the most of it, which is not to be found in any legislative enactment, is not clearly understood by a great many. Neither are the sources of this law available to the average school official. The common-law as it applies to the public school is fully as worthy of consideration as is statute law. Books containing this common-law, drawn as it is from the decisions of courts of record in cases involving school con Preface 1X troversies, should be just as available as are the statutes. At the present time, however, such volumes are exceedingly rare. It is the purpose of this book to take at least a step toward supplying this need. School law is a phase of administrative law, which is itself largely in the process of development. For this reason a good deal of legal research is necessary to segregate from the mass of judicial decisions those that deal with schools and to deduce from them the legal principles involved. Such search must not be content with mere general surveys of the whole field. It must consider intently the various phases of the subject and show how the rules operating in school law are related to and based upon the broader general legal principles. The results of such research may then be organized into a complete unit. It is the purpose of this volume to study the comparatively limited subject of the tort liability of the public school corporation, of its officers and of the members of its instructional staff, pursuing the study into as much detail as practicable. Two divisions may be made in civil liability-contractual and non-contractual liability. This work concerns itself with the latter division. At least in a treatment of the law of the public school, the study of tort liability contains more fundamental considerations than does a study of contractual liability. That line which when overstepped subjects the school to liability in damages is the limit of the power and authority of the school corporation, its officers and the members of the instructional staff. By such a study, therefore, the legal position of the school, its powers and duties, privileges and immunities are clearly set forth. These considerations can be fully regarded in no other way than by a study of the litigation growing out of acts alleged to be in excess of authority or privilege. This is so because the statutes often either contain no provisions on a particular point or leave the details of general provisions to judicial determination and construction. These matters much more so than the mere question of the extent of the liability of schools, school officers and teachers to pay money damages, make the subject of non-contractual responsibility an important consideration. An adequate grasp of the subject matter mainly dealt with in this work requires an understanding of the term tort. Much x Preface difficulty is experienced in attempting to adequately define this term and most authorities merely confine themselves to an explanation rather than a definition. However, a tort has been briefly defined in Callaghan's Cyclopxdic Law Dictionary as "The commission or omission of an act by one without right, whereby another receives some injury, directly or indirectly, in person, property, or reputation." A non-legal work, College Standard Dictionary (Funk and Wagnalls) carries the following definition: "Any private or civil wrong by act or omission giving rise to a remedy which is not an action of contract." The legal obligation to make monetary restitution to a person injured by such a wrong is termed tort liability. The material used in this work has been drawn almost entirely directly from the reports of the cases decided by the supreme courts or other courts of record of the forty-eight states. The cases considered have been drawn from the entire period of our national and colonial history as covered by the digests of the American Reporter System, which system digests all reported cases from 1658 down to the present time. This revision of this book has been brought up to date by the inclusion of cases appearing up to September, 1931. The reports of a number of cases determined by the federal courts and a few cases by the English courts have also been used. This work is, of course, intended as a book of reference. Its style is governed by that purpose. With that in mind an effort has been made to make it completely authoritative within its more or less limited confines. With this use in mind also, footnotes have been arranged by states wherever possible, so that school officers, or anyone else having occasion to look up a point, may find quickly a list of the cases, if there are any, for his own state. To facilitate the use of this work for reference purposes, the main body of the book is prefaced with an analytical table of contents. For this purpose, also, each chapter is likewise headed by an outline analysis of its contents. As a further aid a complete table of cases will be found at the rear in which all cases referred to in the book have been listed by states. As a final reference aid there will be found in the back of the book an extended bibliography and a rather minute index. The bibliography has been made more complete than necessary for a lawyer, but the needs of Preface xi the layman, the average school officer, administrator or student has been kept in mind. A considerable body of law, dealing expressly with the field of public education, is rapidly developing in this country. This law is and will become an even more vital part of the preparation and practical working equipment of the administrators of our public educational systems. It is hoped that this work may be a worthy contribution in this field. Frederick Weltzin Grand Forks, North Dakota November 1, 1931. TABLE OF CONTENTS CHAPTER PAGE Analysis of Chapters.... I. Nature of the Public School Corporation.. 1 II. The Legal Position of the Public School Corporation 22 III. The Work of the School Corporation.... 47 IV. The Legal Authority of Cities over Public Schools as Shown by Municipal Liability for Torts of School Boards... 71 V. The Legal Authority of the Public School as Shown by the Common Law Rule of NonLiability of School Districts in Tort.. 87 VI. Variations and Exceptions to the General Rule of Non-Liability of School Corporations in Tort. 113 VII. The Legal Authority of School Officers as Shown by Their Tort Liability in Relation to the School Board..... 149 VIII. The Legal Authority of School Officers as Demonstrated by Their Tort Liability in Relation to Pupils and Teachers... 164 IX. The Legal Authority of Teachers and School Administrators as Shown by the General Rules of Tort Liability... 193 X. The Legal Authority to Inflict Corporal Punishment...214 XI. Comments on, and Criticisms of the Law of Tort Liability in Public Schools.... 237 Table of Cases, Arranged by States.... 243 Bibliography........ 260 Index.............. 268 ANALYSIS OF CHAPTERS CHAPTER SECTION I. NATURE OF THE PUBLIC SCHOOL SYSTEM Scope of Chapter............................................................. 1 Legal existence of the school district............2........ 2 Corporations in general Definitions 3 Principal attributes........................................... 4 Kinds of corporations in general.......................... 5 Quasi corporations................................ 6 Corporate character of school district and board Statutory provisions................7.............. 7 Judicial definition and classification of school districts and boards as quasi corporations....... 8 Explanation of quasi corporate character........ 9 Variation in terminology...................................... 10 New York union free school districts.................. 11 Variations largely in name........................ 12 Chapter summary......................................................... 13 PAGE 1 1 2 4 4 8 9 12 14 17 19 20 21 II. THE LEGAL POSITION OF THE PUBLIC SCHOOL CORPORATION Scope of chapter...14......................... 14 The school corporation and the state Constitutional provisions............................. 15 School corporations, state agencies........... 16 Legislative control in general............................ 17 Illustrated by territorial division and apportionment.......-.-............. 18 The school corporation and the municipality in general........................ 19 The courts on municipal school control General independence.................................. 20 School dependence................................ 21 Dual control.............................. 22 Chapter summary.................................... 23 III. THE WORK OF THE SCHOOL CORPORATION Scope of chapter................................... 24 Powers and duties of the school board In general................................. 25 Effect of quasi corporate character............... 26 Summary.................................. 27 22 22 25 30 32 35 37 40 43 46 47 47 49 51 Xvi Analysis of Chapters xvi Anmlysis of Chapters CHAPTER SECTION PAGE Detailed statutory powers and duties.................. 28 52 Judicial construction......................................... 29 52 Powers and duties of board members and other school officers..........................-........................ 30 56 Resolutions In general......-............................. 31 58 General jurisdiction........................................ 32 59 Control of pupils...................................................... 33 60 Punishment of pupils............................... 34 64 Procedure in exercise of authority................... 35 64 Control by courts...................................................... 36 67 Chapter summary.................-..........-..... 37 69 IV. THE LEGAL AUTHORITY OF CITIES OVER PUBLIC SCHOOLS AS SHOWN BY MUNICIPAL LIABILITY FOR TORTS OF SCHOOL BOARDS Scope of chapter............-....................... 38 71 Torts in general........................-......... -. 39 72 Government non-liability in tort.............................. 40 76 Tort liability of municipal corporations In general........-.................. 41 76 General rule of non-liability for torts of school board.................. -................ 42 77 The case of Hill v. City of Boston......................... 43 78 Application of the common-law rule Construction and maintenance of school buildings 44 79 Injuries in relation to school premises or defective apparatus................................. 45 80 Municipal non-liability based on city and school separation................................... 46 81 Recovery allowed-nuisance................................ 47 83 Statutory liability-The Massachusetts statute on wrongful exclusion..........-............. —........... 48 84 Chapter summary................................... 49 85 V. THE LEGAL AUTHORITY OF THE PUBLIC SCHOOL AS SHOWN BY THE COMMON LAW RULE OF NONLIABILITY OF SCHOOL DISTRICTS IN TORT Scope of chapter......................................... 50 87 Common-law rule of non-liability of the school corporation in tort........-......................... --- 51 88 Other reasons for denial of recovery Lack of funds with which to pay damages........ 2 89 Master and servant, or principal and agent relation lacking....................-............. 53 91 Injury not fault of school corporation................ 54 92 Absence of duty owing; wrong party in suit........ 55 93 Analysis of Chapters xvii CHAPTER SECTI1 Application of above principles.................................... 56 Injuries arising during construction and repair of school buildings........................................... 57 Injuries resulting from condition of school buildings................................................. 58 Injuries arising in the operation and maintenance of school plant................................... 59 Playground injuries and those arising in school premises generally.................................... 60 Injuries arising in connection with manual training equipment.................................... 61 Injuries arising in connection with transportation of pupils...........................-............. 62 Injuries arising in operation of school cafeterias........................................................................ 63 Injuries arising in the physical and medical care of pupils............................................ 64 Torts of truant officers................................ 65 Libel... ---.............. ---... 66 Neglect to take contractor's bond........................ 67 Chapter summary............................................. 68 VI. VARIATIONS AND EXCEPTIONS TO THE GENERAL RULE OF NON-LIABILITY OF SCHOOL CORPORATIONS IN TORT Scope of chapter............................ 69 Evidences of the beginning of a break with the old rule of non-liability of school districts in tort................................................................ 70 The Minnesota statute and its construction.............. 71 The Oregon statute and its application................ 72 Early construction of the statute.......................... 73 Reversals in construction and application........ 74 The latest application of the Oregon statute.. 75 The Washington statutes and their construction and application....................... 76 The Washington limiting statute of 1917....... 77 The application of the new limiting statute to cases in the courts at the time of its passage 78 Construction and application of the Washington statutes since the passage of the 1917 limiting act —....................-. 79 The Permissive statutes of California. —... ---. 80 Construction of the California statutes in the leading case of Ahern v. Livermore Union High School District........................................ 81 ON PAGE 94 94 96 98 100 104 105 107 108 108 110 110 111 113 114 115 117 118 120 123 124 126 127 129 133 134 Xviii Analy~sis of Chatpters xviii Analysis of Chapters CHAPTER S: Application of the California statutes in general..................... —. --- —----------- The New York Rule of liability of public school corporations in tort................................. The development of the New York Rule............ The New York Rule in its latest applications... The Michigan "nuisance" case............................ Cases arising out of neglect to take contractors' bonds............ Chapter summary............................ ECTION PAGE 82 135 83 84 85 86 138 139 143 145 87 88 146 147 VII. THE LEGAL AUTHORITY OF SCHOOL OFFICERS AS SHOWN BY THEIR TORT LIABILITY IN RELATION TO THE SCHOOL BOARD Scope of chapter................................ Classification of public officers........................... Tort liability of legislative, judicial and executive officers............................ Tort liability of administrative officers in general Tort liability of school officers in general No liability for torts of school corporation...... No liability for torts of subordinates.................. Liability for misapplication and misappropriation of funds Directors and trustees............................ School treasurer................................... Liability for loss of school funds..................... Liability for neglect to take contractor's bond........ Liability to tradesmen...................... Chapter summary...-......... --- 89 90 149 149 91 92 150 151 93 152 94 154 95 96 97 98 99 100 155 156 158 159 161 162 VIII. THE LEGAL AUTHORITY OF SCHOOL OFFICERS AS DEMONSTRATED BY THEIR TORT LIABILITY IN RELATION TO PUPILS AND TEACHERS Scope of chapter............ —................-. 101 Liability for school accidents............................. 102 Liability for exclusion of pupils In general........................... 103 No liability where exclusion lawful....-....... 104 Application of general rule.... -.............. 105 Liability to parent.....-...-..................-............. 106 Liability for corporal punishment of pupils.......... 107 Liability for dismissal and ejection of teacher....... 108 164 164 168 170 171 173 175 177 Analysis of Chapters Xix CHAPTER SECTION PAGE Liability for libel and slander - Defamation in general......................................... 109 182 Application of principles of libel and slander To charges against teachers generally................ 110 185 To communications between board members...... 111 186 To communications to superiors............................ 112 189 To public discussion. --- —-----------------------------------------— 113 190 Chapter summary................ 114 191 IX. THE LEGAL AUTHORITY OF TEACHERS AND SCHOOL ADMINISTRATORS AS SHOWN BY THE GENERAL RULES OF TORT LIABILITY Scope of chapter....................................... 115 193 Legal status and authority of teachers....... 116 194 Liability for wrongful suspension and expulsion.... 117 197 Liability for detention of pupils................................ 118 201 Liability of a teacher for refusal to instruct a pupil 119 203 Liability of discharged teachers remaining in school......................................... 120 204 Liability for libel and slander Communications of superintendents and principals on the character of teachers. --- —------------ 121 204 Comments on character of pupils........................ 122 207 Teacher's criticisms of other instructors............ 123 209 Teacher's comments on the character of board members................................................................ 1 24 209 Liability of teachers for causing the school corporation monetary loss................................... 125 209 Liability of teachers to injured tradesmen.............. 126 210 Chapter summary................................... 127 212 X. THE LEGAL AUTHORITY TO INFLICT CORPORAL PUNISHMENT Scope of chapter............................................................ 128 214 Teacher's right to punish corporally. --- —------------------ 129 214 Sufficiency of cause for punishment. --- —------------—...... 130 217 Liability for causing permanent injury.................. 131 220 No liability for moderate punishment. --- —------------------ 132 222 Liability for excessive or unreasonable punishment. --- —---------- 133 224 Effect of good motive ------------. 134 229 Effect of bad motive. --- —---------------------------— 135 231 Liability for punishing corporally adult pupils...... 136 233 Liability of a superintendent. --- —----------------- 137 234 Chapter summary............................................ 138 235 xx Analysis of Chapters CHAPTER SECTION PAGE XI. COMMENTS ON, AND CRITICISMS OF THE LAW OF TORT LIABILITY IN PUBLIC SCHOOLS Criticisms, implications and suggestions as to the extension of governmental non-liability in tort to the school corporation --------— _ --- —------—. 139 237 Criticism of absolute liability of school officers for loss of school funds -------------------- 140 240 Comments on the allowance of corporal punishment 141 240 TABLE OF CASES, arranged by states -------------------------------- 243 BIBLIOGRAPHY ------------ 260 IN D E X ---- ---- --- ---- ---- --- ---- ---- --- ---- - — 268 The Legal Authority of the American Public School as Developed by a Study of Liability to Damages CHAPTER I Nature of the Public School Corporation Analysis of Chapter SECTION PAGE Scope of chapter.......................................................................... 1 Legal existence of the school district............................. 2 Corporations in general Definitions.3............................. 3 Principal attributes........................................................... 4 Kinds of corporations in general...................................... 5 Quasi corporations............................................................ 6 Corporate character of school district and board Statutory provisions...........-...................... 7 Judicial definition and classification of school districts and boards as quasi corporations.............................. 8 Explanation of quasi corporate character.................... 9 Variation in terminology.................................................... 10 New York union free school districts............................. 11 Variation largely in name........................................ 12 Chapter sum m ary...................................................................... 13 2 4 4 8 9 12 14 17 19 20 21 ~1. SCOPE OF CHAPTER. Before any attempt is made to discuss the duties and liabilities of a school board or district, it is necessary to know what position the board and district occupy in the law. Legally speaking, what sort of creatures are they? This chapter will answer this question. ~2. LEGAL EXISTENCE OF THE SCHOOL DISTRICT. In a Massachusetts case decided in 1816, plaintiffs styling themselves "Inhabitants of the fourth school district of Rumford, County of Oxford," brought an action on a contract against one with whom an agreement had been made to build and lease 2 The Legal Authority of the American Public School a school house. The defendant objected that the plaintiffs could not bring that action, or any other, because they were not a corporate body at all, but merely a group of people with no power to make or enforce contracts. This plea denied the existence of a school district as a legal entity. The good judges must have pondered over the matter long and seriously for the case went to the highest court of the state, and there Justice Parker stated that the court was "... finally, of opinion..." that the defendant's objection was bad-that there were, in the eyes of the law, such corporate bodies as school districts.' It seems that this legal youngster was regarded rather suspiciously in some circles. The question arose in New Hampshire whether or not a school board had the authority to vote the payment of a sum of money greater than that voted on at a school election for the repairing of a school building. Said Justice Bell in delivering the opinion: "The questions arising in this case are of interest, as they are calculated to settle in some degree the powers of school districts, and their officers. These little corporations have sprung into existence within a few years, under a system of legislation of very doubtful expediency, and their corporate powers and those of their officers are to be settled by the constructions of the courts, upon a succession of crude, unconnected, and often experimental enactments."2 Now no one doubts the legal existence of the school district or board and few their expediency. Our question here is notIs there a school corporation?; but rather, What is the nature and status of that corporation? In order that it may be seen just what position the school corporation occupies, it is advisable to approach the contemplation of the corporate character of the school district and board through a brief survey of corporations and their characteristics in general. ~3. CORPORATIONS IN GENERAL-DEFINITIONS. Numerous definitions of a corporation are to be found in the cases and in the textbooks. Practically all of the foremost courts of the country have given excellent ones.3 There are, however, a 1 Inhabitants of Rumford v. Wood (1816) 13 Mass. 193. 2 Harris v. School Dist. No. 10 (1853) 28 N. H. 58. 8 1 Thompson, Corps. 6-9. Nature of the Public School Corporation 3 few outstanding statements which are very frequently cited. One of the early ones is that of Lord Coke, given in a case decided in 1613.4 "... A corporation aggregate of many is invisible, immortal, and rests only in intendment and consideration of the law...." Chief Justice Marshall appears to have followed Coke in formulating his famous definition, cited more frequently than any other. "A corporation is an artificial being, invisible, intangible, and existing only in the contemplation of law. Being the mere creature of law, it possesses only those properties which the character of its creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality; properties, by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs, and to hold property, without the perplexing intricacies, the hazardous and endless necessity, of perpetual conveyance for the purpose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of men, in succession, with these qualities and capacities, that corporations were invented, and are in use. By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being."5 Kyd formulated the following comprehensive, yet clear statement: "A collection of many individuals united in one body, under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several respects as an individual, particularly of taking and granting property, of contracting obligations, and of suing and being sued, of enjoying privileges and immunities in common, and of exercising a variety of political rights more or less extensive according to 4 Suttons Hospital Case (1613) 10 Coke's Rep. 1, 32; 77 Reprint 973. 5 Dartmouth College v. Woodward (1819) 4 Wheat. (U. S.) 518, 634, 4 L. Ed. 629. 4 The Legal Authority of the American Public School the design of its institution or the powers confined upon it, either at the time of its creation, or any subsequent period of its existence." A corporation has also been defined as a "legal person, perfectly distinct from the members which compose it, having a special name and having such powers, and such only, as the law prescribes."7 So, also, it has been spoken of as a franchise.8 Ballantine in a recent treatise on corporations gives the following short definition: "A corporation is an association of individuals and other corporations for some joint enterprise, invested by the law with capacity to sue and be sued, to make contracts, to take, hold, and convey property, and to do other acts like a single individual."9 ~4. SAME-PRINCIPAL ATTRIBUTES. Mc Q u i llan, citing Blackstone and Kent, lists the following as the six powers as incident to every corporation. "1. To have perpetual succession. 2. To sue and be sued, implead and be impleaded, grant and receive by its corporate name and do all other acts as natural persons may. 3. To purchase lands and hold them. 4. To have a common seal. 5. To make by-laws or provide statutes for the better government of the corporation. 6. The power of amotion or removal of members...."10 It is seen, then, that when one deals with a corporation, one deals with an artificial person, endowed with perpetual life (unless expressly limited), possessed of most and sometimes more powers and rights than a living being, and responsible like a living being for its wrongdoings. ~5. SAME-KINDS OF CORPORATIONS-IN GENERAL. Classification may be made from a number of different angles. The 6 1 Kyd, Corps. 13. 71 Dillon, Mun. Corp. (5th ed.) 57. 8 2 Kent, Comm. (14th ed.) 267. 9 Ballentine, Corps. 6. 10 1 McQuillin, Mun. Corps. (2d ed.) 361. Nature of the Public School Corporation 5 following outline illustrates this, classifying corporations from three different points of view. I. As to members: A. Aggregate B. Sole II. As to purpose: A. Ecclesiastical or religious B. Lay 1. Civil 2. Eleemosynary III. Private or Public: A. Private B. Public 1. Quasi-public corporations 2. Municipal corporations 3. Quasi corporations An aggregate corporation is one consisting of more than one member. Most of our corporations are of this sort. Corporations sole consist of only one member. These are very rare in this country. In England the king is a corporation sole.12 For certain purposes Catholic bishops or priests have been termed corporations sole.13 Certain public officers have also been held corporations sole.14 Ecclesiastical corporations proper are not found in this country because we have no established church, but are found in England. Corporations in this country whose purpose it is to foster and inculcate religious beliefs are termed religious corporations;15 all other are lay corporations. Eleemosynary corporations as distinguished from civil, are those organized for charitable purposes, and include asylums for the insane, poor, and deaf, as well as hospitals and some private colleges; corporations formed for any other purpose, public or private, are civil corporations. 16 The above classifications are of minor importance in com11 Clark, Corps. 28-29. 121 Thompson, Corps. (3d ed.) 25. 13 14 C. J. 71. 14 Fletcher Cyc. Corps. 81-83. 151 Thompson, Corps. 26-27. 16 Fletcher, Cyc. Corps. 86. 6 The Legal Authority of the American Public School parison with that as to public or private corporations. Many writers make only the latter classification. The distinction here is well stated by Elliott: "A private corporation is an incorporated association formed by the voluntary agreement of its members, having for its object the advancement of the private interests of the members. It is sometimes difficult to determine whether a corporation is public or private, but the simple and sufficient test is found in the purpose of its creation. If it is an agency for the administration of government it is public; but if its primary purpose is the private emolument of its members it is private, although the state may hold a part or even all of its shares of stock. The true criterion is whether the objects, uses, and purposes for which the corporation was organized are solely for the public benefit and convenience, or for private emolument, and whether the public can participate in them by right or only by permission. The mere fact that a corporation is subject to visitation and inspection by a public official does not make it a public corporation."l7 Thus, Dartmouth College, although founded for educational and charitable purposes, was held to be a private corporation.18 A public corporation is created for the administration of the civil government. It exists for public purposes only. Its whole interest must belong to the government. The legislature may control it without the consent of its members. This is so because its creation is not through contract, while the charter of the private corporation is a contract and cannot be impaired unless the legislature has expressly reserved such power. A public corporation is not subject to taxation as is the private corporation. There is also a difference in the liability for negligence between the two.19 The United States,20 each of the states 21 and counties 22 are 17 Elliott, Priv. Corps. ~15. 18 Dartmouth College v. Woodward (1819) 4 Wheat. (U. S.) 318, 634, 4 L. Ed. 629. 19 Cooley, Mun. Corp. 10-12; 1 Fletcher, Cy. Corps. 90-95; 1 Thompson, Corps. 30-32. 20 United States v. Maurice (1823) 2 Brock (U. S.) 96, Fed. Cas. No. 15747; Dickson v. United States (1878) 125 Mass. 311, 28 Am. Rep. 230. 21 State v.Atkins (1866) 35 Ga. 315; Michigan State Bank v. Hastings (1844) 1 Doug. (Mich.) 225, 41 Am. Dec. 549. 22 Dixon v. People (1912) 53 Colo. 527, 127 Pac. 930. Nature of the Public School Corporation 7 II public corporations. So also are state universities,23 as well as public school districts and townships, trustees and boards of education.2 As we have seen, public corporations are of three kinds: quasi-public, municipal and quasi 25 corporations. "A quasipublic corporation is one constituted of private persons to engage in a business, public in its nature, and where it must serve all who apply. It is therefore granted the power to acquire under the exercise of the power of eminent domain,26 lands, rights of way, and other property essential to the performance of its public duties."27 Those corporations are usually spoken of as public utility or public-service corporations. Canal companies, railroad companies, gas companies and electric-service companies 28 are the best illustrations of quasi-public corporations. In contrast with the quasi-public corporation, which, as we have seen, is quite largely a private corporation, and in contrast with the quasi corporation, which does not possess all the features of the true corporation, the municipal corporation proper is the perfect public corporation. The incorporated city, town, village or borough is characterized by Dillon as a "body politic and corporate constituted by the incorporation of the inhabitants... for the purpose of local government thereof... established by law partly as an agency of the State to assist in the civil government of the country, but chiefly to 23Alabama University v. Winston (1833) 5 Ala. Rep. 17; State v. Kansas University (1895) 55 Kan. 389, 40 Pac. 656, 29 L. R. A. 378; Butler v. Regents of the University (1875) 32 Wis. 124. 24People v. Bd. of Ed. of Paris (1912) 255 Ill. 658, 99 N. E. 659; People v. Dupuyt (1874) 71 Ill. 651; Rock Island Lumber & Mfg. Co. v. Elliott (1898) 59 Kan. 42, 51 Pac. 894. 25 Latin for almost. "A term used to mark a resemblance and which supposes a little difference between two objects." Cyc. Law Dict. 26 "The power to take private property for public use, whether exercised by the sovereign directly, or by one to whom the sovereign power has been delegated for quasi-public purposes." Cyc. Law Dict. 27 3 Purdy's Beach Priv. Corps., ~1032. 28 Ten Eyck v. Delaware, Etc. Canal Co. (1841) 26 N. J. L. 200, 37 Am. Dec. 233; Pueblo Etc. R. Co. v. Taylor (1881) 6 Colo. 1-8, 40 Am. Rep. 512; Atty-Gen. v. Haverhill Gas Light Co. (1913) 215 Mass. 394, 101 N. E. 1061, Ann. Cas. 1914C, 1266; State v. Consumer's Power Co. (1912) 119 Minn. 225, 137 N. W. 1104, 41 L. R. A. (N. S.) 1181, Ann. Cas. 1914B, 19. 8 The Legal Authority of the American Public School regulate and administer the local or internal affairs of the city, town, or district which is incorporated."29 It is important to note here the two-fold character-(a) private or municipal, and (b) governmental-, as it will later be shown to have a bearing on a city's tort liability with reference to its schools.30 ~6. SAME-QUASI CORPORATIONS. We have seen that a private corporation also serving a public purpose may be called a quasi-public corporation. In this same way certain organizations, or political institutions which are not corporations in the full sense may be called quasi corporations-literally "almost" corporations. Bouvier's Law Dictionary gives a good definition. "A term applied to those bodies or municipal societies which, though not vested with the general powers of corporations, are yet recognized, by statutes or immemorial usage, as persons or aggregate corporations, with precise duties, which may be enforced, and privileges which may be maintained by suits at law. They may be considered quasi corporations, with limited powers, coextensive with the duties imposed upon them by statute or usage, but restrained from a general use of the authority which belongs to those metaphysical persons by the common law."31 There are a number of points of difference between the quasi corporation and the perfect public corporation, the municipal corporation. One of these differences is indicated by the name-the former is not a full corporation, but has only limited powers, while the municipal corporation is complete.32 The creation of the municipal corporation results from the voluntary acts of its members, while usually the quasi corporations are involuntary as respects the will of their constituents.33 The state has through general enactment invested these bodies with a corporate character so that they may more readily achieve the special purposes of their establishment. They are the instrumentalities of the state for the performance of 29 1 Dillon, Mun. Corps. (5th ed.) ~31. 30 Infra, p. 115 e4 seq. 31 Bouvier's Law Dict. (3d rev.) 1914, "Quasi Corporation." 32 Harris v. School Dist. No. 10 (1853) 28 N. H. 58; Hamilton County v. Garrett (1884)\ 62 Tex. 602. 33 Hanson v. City of Cresco (1906) 132 Iowa 533, 109 N. W. 1109. Nature of the Public School Corporation 9 these definite functions.34 "They are purely auxiliaries of the state; and to the general statutes of the state they owe their creation, and the statutes confer upon them all the powers they possess, prescribe all the duties they owe and impose all the liabilities to which they are subject."35 The municipal corporation has been formed for the purpose of administering local government. It appears to have a certain degree of sovereignty which the quasi corporation does not possess. The latter is established to perform a single function of the state in one of the state's sub-divisions.36 As a summary we may quote Cooley's definition. "A quasi corporation is an involuntary political or civil division of the state, created by general law to aid in the administration of the government."37 The following are illustrations of quasi corporations: counties,38 townships,39 irrigation districts,40 road districts,41 fire engine companies,42 and school districts and boards. ~7. CORPORATE CHARACTER OF SCHOOL DISTRICT AND BOARD-STATUTORY PROVISIONS. The statutes of thirty-four of the states make express statements to the effect that school districts and boards are corporate bodies.43 The following section from the North Dakota statutes is a typical illustration: 34 1 Dillon, Mun. Crops. 5th ed. 1911) 67. 35 Ibid. 36 McQuillin, Mun. Corps. (2d ed. 1928) 391. 37 Cooley's Mun. Corps. 12. 38 Hollenbeck v. Winnebago County (1880) 95 Ill. 148, 35 Am. Rep. 151; Dixon v. People (1912) 53 Colo. 527, 127 Pac. 930. 39 Wells v. Burbank (1845) 40 N. H. 173; Hopple v. Trustees of Brown Tp. (1861) 13 Ohio St. 311. 40 Payette-Oregon Slope Irrigation District v. Peterson (1912) 76 Ore. 630, 128 Pac. 837. 41 Levy Court v. Coroner (1864) 2 Wall. (U. S.) 501, 17 L. Ed. 851. 42 Cole v. Fire Engine Co. (1878) 12 R. I. 202. 43 Arkansas: School Law Dig. (1923) p. 28, 58, 66-67; Crawford & Moses' Dig., ~~8815, 8819, 8839. Colorado: School Laws (1927) ~154; C. L. '21, ~8322. Connecticut: School Laws, Document No. 5 (1922) ~118; G. S., Chap. 50, ~920. Florida: School Laws (1925) ~44, 375; R. G. S., ~~447, 618. Idaho: School Laws (1927) p. 8, ~3; Laws 1921, Chap. 215, ~3. Illinois: School Laws (1925) ~20; Supp. (1927) p. 9. Indiana: School Laws (1927) Chap. 5, ~83, Chap. 16, ~531, 539, Chap. 31, ~1096; Burns' Anno. Stat. (1926) ~~6786, 6689, 6696, 7094. Iowa: School Laws (1925) p. 57, ~4123; Code 1924, ~4123. Kansas: Rev. School Laws (1927) Chap. VI, Art. 1, ~125, 179; Laws 1925, Chap. 227, ~1. 10 The Legal Authority of the American Public School "~1140. Each School District a Corporation. Each and every school district in this state now legally organized or which shall be organized or which shall be organized hereafter shall be and is constituted a public corporation to be known and designated as-..-...-. school district No.......- of —..... County, State of North Dakota, with its proper name or number inserted in the blank space provided and with the name of the county inserted in the blank before the word county; and in its own proper name, or number, as such corporation it may sue and be sued, contract and be contracted with and may acquire, purchase, hold and use personal and real property for school purposes or for the purposes mentioned in this act and may sell and dispose of the same."44 Kentucky: School Laws (1926) p. 57, Chap. XV, p. 132, Chap. XVI, p. 157; Chap. XVII, p. 191; Chap. XVIII, p. 201; Ky. Stats. ~~4399a-5, 2978a-1, 3233a-1, 3462, 3587a-1. Maryland: School Laws (1927) Art. LXXVII, Chap. 4, ~40, p. 18. Michigan: School Laws (1927), ~157, Chap. 8, ~180, Part II, Chap. 2, ~6; Comp. Laws 1915, Art. 5, ~12, Chap. 2, ~6, Chap. 8, ~12. Minnesota: School Laws (1927) Chap. 1, ~1; G. S. 1923, ~2742. Missouri: School Law (1927) Art. III, ~11197, p. 53; Amend. Laws, 1921, ~11197. Montana: School Law (1927) Chap. 79, ~1022; Rev. Code, 1923, Chap. 79, ~1022. Nebraska: School Laws (1927), Art. I, ~6239, p. 41; Comp. St., 1922, same Art. and Sec. Nevada: School Code (1927) Chap. 6, ~40-41. New Hampshire: Pub. Laws, Chap. 116, ~1, Chap. 119, ~2. New Jersey: School Laws (1925) Art. VI, ~58, Art. VII, ~123, p. 78; Pub. Laws, 1921, Chap. 9, ~45, Pub. Laws, 1909, Chap. 174, ~84. New York: School Laws (1928) Art. 10, ~270-271, Art. II, ~300. North Carolina: School Code (1923) Part II, Art. 2, ~19, Part IX, Art. 27, ~311. North Dakota: School Laws (1927) ~1140, p. 29; Comp. Laws. 1913, same Sec. Ohio: Page's Anno. Gen. Code, Title XIII, Chap. 5, ~4749. Oklahoma: School Law (1927) Art. III, ~50, Art. VI, ~112, Art. VII, ~170, Art. VIII, ~185. Oregon: School Laws (1927) Chap. VIII, ~269; 0. L. ~5152. Pennsylvania: School Code (1927) Art. I, ~119. South Carolina: School Laws (1924) ~68, p. 33, ~194, p. 62; Code 1922, ~~2599, 2725, Acts 1923, No. 132. South Dakota: School Laws (1928) Chap. 2, Art. I, ~7448, Chap. 4, Art. I, ~7537, Chap. 6, Art. 2, ~7587. Texas: School Laws (1927) Chap. IV, Art. I, ~50, Art. 89, Art. 110. Utah: School Laws (1927) p. 29-30, 47; Comp. Laws, 1917, Title 90, Chap. 10, ~4616, Chap. 11, ~4680. Virginia: School Laws (1923) Art. 7, ~ c, p. 26, Art. 16, ~ e, p. 69. West Virginia: School Law (1927) ~4, p. 7, ~46, p. 24. Wyoming: School Laws (1927) ~120, p. 46, ~164, p. 61; Comp. Stat., 1920, ~~2389, 2237. 44 School Laws (1927) ~1140, p. 29; Comp. Laws, 113, same Sec. Nature of the Public School Corporation 11 Statutes of a number of the states employ a form practically identical with this illustration. Several others, however, do not directly term the district or board a corporation, but rather use the phrase, "a corporate body." The following excerpt from the statutes of Maryland well illustrate this: "The county board of education [is] hereby declared to be a body politic and corporate by the name and style of the Board of Education of -..-.. County, and by that name shall have perpetual succession, and shall be capable to sue and be sued, to use and to have a common seal, and the same at their pleasure, to alter or break, and to exercise all the powers and privileges hereby granted to or vested in them."45 Other statutes contain no express statements either declaring school districts to be "corporations" or "bodies corporate," but many such statutes have provisions directly implying corporate character.46 Such provisions usually constitute a statement of the general powers of the school board. Such is the case in the illustrative provision quoted here from the Alabama School Code: "The County Board of Education shall have the right to acquire, purchase, or by the institution of condemnation proceedings if necessary, lease, receive, hold, transmit and convey the title to real and personal property for school purposes. It may sue and contract... "47 The general provision of the Arizona statutes is also typical: "Each regularly organized school district heretofore formed, or that may be formed, shall be designated as School District No.. —.- of -—. County, -...., and in that name the trustees may sue and be sued, and hold and convey property for the use and benefit of such district."48 None of the statutes state expressly what sort of a public corporation the school corporation constitutes. But as school 46 School Laws (1927) Art. LXXVII, Chap. 4, ~40, p. 18. 46Alabama: School Code (1927) Art. VI, ~132, Art. IX, ~~188, 218. Arizona: School Laws (1925) Title XI, Chap. 7, Para. 2719; Rev. Stats., 1913, same Title, Chap. and Para. Georgia: School Code (1919) Art. V, ~88. Kentucky: School Laws (1926) p. 122; Ky. Stats., ~4466. New Mexico: School Code (1927) Chap. VIII, ~801, Chap. IX, ~902. Rhode Island: School Laws (1923) p. 15; Gen. Laws Rev., 1923, Title IX, Chap. 69, ~3. 47 School Code (1927) Art. VI, ~132. 48 School Laws (1925) Title XI, Chap. 7, Para. 2719; Rev. Stats., 1913, same Title, Chap. and Para. 12 The Legal Authority of the American Public School questions have come up for determination in the courts of the various states, it has often been a necessary precedent to adjudication to define and classify these corporations. ~8. SAME-JUDICIAL DEFINITION AND CLASSIFICATION OF SCHOOL DISTRICTS AND BOARDS AS QUASI CORPORATIONS. It has been pointed out in the preceding section that most state school laws declare school districts and boards to be corporations or corporate bodies. They do not, however, classify them. But the supreme courts of most states have declared these bodies to be quasi corporations.49 49Arkansas: School Dist. No. 11 v. Williams (1892) 38 Ark. 454; A. H. Andrews Co. v. Delight Special School Dist. (1900) 95 Ark. 26, 128 S. W. 361. Connecticut: "School districts are not permanent corporations, but quasi corporations of a public nature with limited powers strictly defined by statute."-Hassett v. Carroll (1911) 85 Conn. 23, 81 Atl. 1013; McLoud v. Selby (1845) 10 Conn. 390, 27 Am. Dec. 689. Iowa: Lane v. Dist. Twp. of Woodbury (1882) 58 Iowa 462, 12 N. W. 478. Illinois: "Trustees of schools are a corporation, or more strictly speaking, a quasi corporation..."-People v. Dupuyt (1874) 71 Ill. 651. Chicago Board of Education an "involuntary quasi corporation,"-Kinnare v. City of Chicago (1898) 171 Ill. 332, 49 N. E. 536. Kansas: Knowles v. Topeka Bd. of Ed. (1885) 33 Kan. 692, 7 Pac. 561; Freeland v. Stillman (1892) 49 Kan. 197, 30 Pac. 235. Kentucky: School districts are not technically municipal corporations, but are quasi corporations. Board of Ed. of Newport v. Scott (1920) 189 Ky. 225, 224 S. W. 680. Maine: Andrews v. Estes (1834) 11 Me. 267, 26 Am. Dec. 521. Maryland: "While they [the board of county school commissioners] are not incorporated as legal entities in the full sense of the term, they are quasi corporations,"-State ex rel. Weddle v. Bd. of School Commissioners (1902) 94 Md. 334, 51 Atl. 289. Massachusetts: Inhabitants of Rumford v. Wood (1816) 13 Mass. 193. Minnesota: School district trustees are "agents of a quasi corporation"-Wright County School Dist. v. Thompson (1860) 5 Minn. 280 (Gil. 221). Bd. of Ed. of Sauk Centre v. Moore (1871) 17 Minn. 412 (Gil. 391). Mississippi: School trustees constitute a quasi corporation,-Littleworth v. Davis (1874) 50 Miss. 403. Missouri: School district of Kansas City a quasi corporation,-National Waterworks Co. v. Kansas City School Dist. No. 7 (1882) 48 Fed. 523; Bd. of Ed. of St. Louis, a quasi corporation,-Cockran v. Wilson (1921) 287 Mo. 210, 229 S. W. 1050; Dick v. Bd. of Ed. of St. Louis (1922) 238 S. W. 1073; Krueger v. Bd. of Ed. of St. Louis (1925) 310 Mo. 239, 274 S. W. 811. New Hampshire: Johnson v. Dole (1828) 4 N. H. 478; Harris v. School Dist. No. 10 (1853) 28 N. H. 58; School Dist. v. Pillsbury (1876) 58 N. H. 423. New York: Ordinary school districts and trustees held quasi corporations,-Rapelye v. Van Sickler (1845) 1 Edm. Gen. Cas. 175; Horton v. Garrison (1856) 23 Barb. 176. Nature of the Public School Corporation 13 They were thus considered in the Kansas case, Beach v. Leahy, decided in 1873, where a group of tax-payers, claiming that a certain school tax levied by the legislature was in violation of a constitutional prohibition of special acts, attempted to restrain the county treasurer from collecting the tax. The Supreme Court holding that the school district was not included in the prohibition, refused the injunction, and declared that, "Cities, towns, and villages, municipal corporations proper, are included, but with reference to counties, townships, and school districts the case is different. True they are called in the statutes bodies corporate. Yet they are denominated in the books, and known to the law, as quasi corporations, rather than corporations proper. They possess some corporate functions and attributes, but they are primarily political subdivisions-agencies in the administration of civil government; and their corporate functions are granted to enable them more readily to perform their public duties.... Giving corporate capacity to certain agencies in the administration of civil government is not the creation of such an organization as is sought to be protected by Article 12 of the constitution."50 In 1875, Chief Justice Ryan speaking for the Supreme Court of Wisconsin said, "It should be borne in mind that school districts are not formally chartered corporations, but North Carolina: Smith v. Robersonville Graded School (1906) 141 N. C. 143, 53 S. E. 524. Ohio: Toledo Board of Education a quasi corporation,-Finch v. Bd. of Ed. of Toledo (1876) 30 Ohio St. 37, 27 Am. Rep. 414. Cincinnati Board of Education a quasi corporation,-Bd. of Ed. of Cincinnati v. Volk (1905) 72 Ohio St. 469, 74 N. E. 646. Oklahoma: District boards quasi corporations,-School Dist. No. 1 v. Wright (1927) 128 Okla. 193, 261 Pac. 953. Pennsylvania: Barnet v. School Directors (1843) 6 Watts and S. 46; Commonwealth v. Beamish (1876) 81 Pa. 389; Erie School Dist. v. Fuess (1881) 98 Pa. 600, 42 Am. Rep. 627; Ford v. School Dist. of Kendall Borough (1888) 121 Pa. 543, 15 Atl. 812. Utah: Woodcock v. Bd. of Ed. of Salt Lake City (1920) 55 Utah 458, 187 Pac. 181. Washington: "Unlike cities and towns, school districts, though corporate entities, and classed as municipal corporations, are essentially only quasi corporations,"-Howard v. Tacoma School Dist. No. 10 (1915) 88 Wash. 167, 152 Pac. 1004. West Virginia: "The board of education is not a corporation vested with general powers of a business corporation. The books call it rather a quasi corporation,"-Herald v. Bd. of Ed. (1909) 65 W. Va. 765, 65 S. E. 165. Wisconsin: Janesville School Dist. No. 3 v. Macloon (1855) 74 Wis. 98. 50 Beach v. Leahy (1873) 11 Kan. 28. 14 The Legal Authority of the American Public School are to be regarded rather, as quasi corporations, variable in organization and extent, and having corporate existence by force only of their public functions."51 Thus also, in a fairly recent case, decided in Michigan, where an action for damages was brought against a school district as a municipal corporation, the Supreme Court declared that, "Although invested with certain corporate characteristics to more efficiently serve the purpose for which they are created, school districts are not municipalities, nor public corporations in the full sense, but because of their very restricted powers are distinguished and recognized as quasi corporations. That a district is organized under a local act, that the school property of the district is held in its name, and that it may sue and be sued does not enlarge it from a quasi corporation."52 ~9. SAME- EXPLANATION OF QUASI CORPORATE CHARACTER. The school corporation, then, is not a complete corporate being as the term quasi 53 denotes, but it has only a restricted measure of corporate life. In the case referred to at the opening of this chapter, Inhabitants of Rumford v. Wood, wherein the defendant in an action on a contract denied the legal existence of a school corporation, Justice Parker said in refuting this denial, "That they are not bodies politic and corporate, with the general powers of corporations, must be admitted; and the reasoning and authorities advanced to show this defect of power are conclusive. The same may be said of towns 5i and other municipal societies, which although recognized by various statutes and by immemorial usage, are persons or aggregate corporations, with precise duties which may be enforced, and privileges which may be maintained, by suits at law; are yet deficient in many of the powers incident to the general character of corporations. They may be considered under our institutions as quasi 55 corporations; with limited powers coextensive with the duties imposed upon them by statute or usage; but restrained from a general use of the 51 Stroud v. Stevens Point (1875) 37 Wis. 367. 52 Daniels v. Board of Ed. of Grand Rapids (1916) 191 Mich. 339, 158 N. W. 23, L. R. A. 1916F 468. 53 Almost, incomplete. Cyc. Law Dict. 54 The New England town, corresponding to a township. 55 "In the character or capacity of." Cyc. Law Diet. Nature of the Public School Corporation 15 authority, which belongs to these metaphysical persons by the common law."56 The Supreme Court of New Hampshire declared in Harris v. School District No. 10, in 1853, that "school districts are quasi corporations of the most limited powers known to the laws."57 The powers of the school corporation are strictly limited by statute, and extend only to the purpose for which the corporation was formed —the management of the public schools. The Minnesota Supreme Court said that school districts are "invested with corporate powers sub-modo,58 and for a few specified purposes only...."59 The Supreme Court of West Virginia, in denying the power of a school board to lease a school house lot for the production of oil and gas, said that "the board of education is not a corporation vested with the general powers of a business corporation."60 The powers of the school corporation are discussed more fully in a later chapter.6 The school corporation is created by statute solely for the purpose of carrying out the educational policy of the state, and, as is the case with all quasi corporations, without regard to the wishes of those who thus become members of the corporation. This is, of course, not the case with the business corporation, nor with municipal corporations proper.62 The Oklahoma Supreme Court said these corporations were "called into being nolens volens 63 for public purposes, without profit or compensation... "4 Thus the school corporation differs from the municipal corporation proper whose creation is voluntary, whose powers are not so strictly limited but are often implied where not expressly stated, and whose organization manifests a complete and perfect public corporation. In the case of Finch v. The Board of Education of Toledo, the Supreme Court of Ohio said that the designation quasi corporation "distinguishes this grade of corporations from municipal corporations, such as cities and towns acting under charters or 56 (1816) 13 Mass. 193. 57 28 N. H. 58. 58 "Under a qualification." Cyc. Law Diet. 59 Bd. of Ed. of Sauk Centre v. Moore (1871) 17 Minn. 412 (Gil. 319). 60 Herald v. Bd. of Ed. (1909) 65 W. Va. 765, 65 S. E. 165. 61 Chap. III, p. 54 et seq. 62 See p. 5 supra. 63 "Whether willing or unwilling." Cyc. Law Diet. 64 School Dist. No. 1 v. Wright (1927) 128 Okl. 193, 261 Pac. 953. 16 The Legal Authority of the American Public School incorporating statutes, which are vested with more extended powers and a larger measure of corporate life."65 In a later case the same court stated that, "While boards of education are 'bodies politic and corporate' they are but quasi corporations and differ materially from municipal corporations, as they are organized in this state."66 That this, too, is the status of the school district in Iowa, is seen in an expression of the Supreme Court of that state in the case of Lane v. District Township of Woodbury.67 "A school district," said that judicial body, "is a public corporation, or a quasi corporation created by statute for the purpose of executing the general laws, and the policy of the state, which requires the education of all its youth. As far as the people are concerned (it is) an involuntary organization. In these respects it is not different from a county, except that its functions and the purposes of its organization are more restricted and not so numerous. The education of youth is the only purpose of the corporate school district." That this also is the status of the school districts of West Virginia may be seen from the following words of Justice Litz speaking for the Supreme Court of that state: "Because of the limited number of its powers, conferred exclusively by statute on it as a public body, within defined territorial limits, said district must rank within those public bodies termed public quasi corporations. This designation distinguishes it, from municipal corporations proper, such as cities or towns acting under charters, or incorporating statutes, and which are invested with more powers and endowed with special functions relating to the particular or local interest of the municipality, and to this end are granted a larger measure of corporate life."68 The school district also differs from the quasi-public corporation. The latter, as pointed out previously,69 is essentially a private corporation, but possesses certain public characteristics. Nevertheless, there has been a wide variation among 65 (1876) 30 Ohio St. 37, 27 Am. Rep. 414. 66 Bd. of Ed. of Cincinnati v. Volk (1905) 72 Ohio St. 469, 74 N. E. 646. 67 Lane v. Dist. Twp. of Woodbury (1882) 58 Iowa 462, 12 N. W. 478. 68 Eakle v. Bd. of Ed. of Henry (1924) 97 W. Va. 434, 125 S. E. 165. 69 See p. 7 supra. Nature of the Public School Corporation 17 the terms employed, and school corporations have been termed municipal, quasi-municipal and quasi-public as well as quasi corporations. ~10. SAME-VARIATIONS IN TERMINOLOGY. The Supreme Courts of California, Colorado, Illinois, Kansas, Minnesota, New York, North Dakota, Pennsylvania, South Dakota, Texas and Wisconsin have all at various times termed the school district or board a quasi-municipal corporation.70 Thus, the Supreme Court of South Dakota classed school districts, together with counties and civil townships, as quasi-municipal corporations.71 Chief Justice Christianson of the North Dakota Supreme Court said: "Strictly speaking, a school district is not a municipal corporation. It is a quasi-municipal corporation... 72 The Board of Education of New York City has been termed "a quasi-municipal or governmental corporation."73 Wisconsin has likewise declared a union free high school dis70 California: Los Angeles City School Dist. v. Longden (1905) 148 Cal. 380, 83 Pac. 246; Pass School Dist. v. Hollywood City School Dist. (1909) 156 Cal. 416, 105 Pac. 122; Wood v. Calaveras County (1913) 164 Cal. 398, 129 Pac. 283; Pasadena School Dist. v. Pasadena (1913) 166 Cal. 7, 134 Pac. 985. Colorado: School District a quasi-municipal corporation,-School Dist. No. 98 v. Pomponi (1926) 79 Colo. 658, 247 Pac. 1056. Illinois: School districts and school townships called quasi-municipal corporations,-People v. Bd. of Ed. of Paris School Dist. (1912) 255 Ill. 568, 99 N. E. 639; Melin v. School Dist. No. 76 (1924) 312 Ill. 376, 144 N. E. 13. Kansas: City board of education a quasi-municipal corporation,-Rock Island Lumber Mfg. Co. v. Elliott (1898) 59 Kan. 42, 51 Pac. 894. Minnesota: Snider v. City of St. Paul (1892) 51 Minn. 466, 53 N. W. 763, 18 L. R. A. 151. New York: People v. Board of Ed. of New York City (1894) 143 N. Y. 62, 37 N. E. 637. North Dakota: Minot Special School Dist. v. Olsness (1926) 53 N. D. 683, 208 N. W. 968, 45 A. L. R. 1337. Pennsylvania: Ayres' Appeal (1889) 122 Pa. 266, 16 Atl. 356; Lyon v. Strock (1922) 274 Pa. 541, 118 Atl. 432. South Dakota: Plumbing Supply Co. v. Bd. of Ed. of Canton (1913) 32 S. D. 270, 142 N. W. 1131. Texas: School board a quasi-municipal corporation,-Zucht v. San Antonio School Bd. (1914) 170 S. W. 840. Wisconsin: Iverson v. Union Free High School Dist. (1925) 183 Wis. 432, 202 N. W. 788; Schaut v. Joint School Dist. (1926) 191 Wis. 104, 210 N. W. 270. 71 Plumbing Supply Co. v. Bd. of Ed. of Canton (1913) 32 S. D. 270, 142 N. W. 113. 72 Minot Special School Dist. v. Olsness (1926) 53 N. D. 683, 208 N. W. 968, 45 A. L. R. 1337. 73 People v. Bd. of Ed. of New York City (1894) 143 N. Y. 62, 37 N. E. 637. 18 The Legal Authority of the American Public School trict not to be a municipal corporation, but a quasi-municipal corporation.74 The term seems to indicate that the school corporation has, in these cases, been regarded as having many of the characteristics of a municipality, but that it is lacking in such a sufficient number of the requisites of such bodies as not to constitute a municipal corporation proper. Such is the explanation of this term as used by the courts of California. California Jurisprudence states that the school corporation "is created for 'municipal' purposes only in the broadest use of the term, while a city is a miniature government having legislative, executive and judicial powers."75 Quite often it has happened that school districts and boards have been held to come within the class of municipal corporations in order to bring them within the operation of certain legislative acts or constitutional provisions. This has relatively frequently been the case in connection with statutory or constitutional limitations of indebtedness. Thus, the Supreme Court of Iowa held that school districts came within the operation of Art. II, Sec. 3 of the State Constitution inhibiting municipal corporations from incurring indebtedness to an amount exceeding five per cent on the taxable property of the corporation.76 Several Kentucky cases have held that school districts and boards were "municipalities" within a constitutional prohibition (~157) and provided that "no county, city, town, taxing district, or other municipality" is permitted to contract indebtedness above a certain limit without an election.77 School districts are held to be public quasi corporations in North Carolina but yet were included within the term "municipal corporations" as used in an article in the state constitution which states that "no county, city, town or other municipal corporation shall contract any debt,..." without an election approving the same.78 ' Iverson v. Union Free High School Dist. (1925) 186 Wis. 432, 202 N. W. 788. 76 23 Cal. Jur. 33, ~14. 76 Winspear v. Twp. of Holman (1873) 37 Iowa 542. 77 Brown v. Newport Bd. of Ed. (1900) 108 Ky. 783, 57 S. W. 612; City Council of Richmond v. Powell (1894) 101 Ky. 7, 27 S. W. 1; Commonwealth v. Louisville & N. Ry. Co. (1899) 105 Ky. 206, 48 S. W. 1092. 78 Smith v. Robersonville Graded School (1906) 141 N. C. 143, 53 S. E. 524. Nature of the Public School Corporation 19 The Supreme Court of Oklahoma also has held school districts municipal corporations within the meaning of a statute providing for the issuance of bonds by municipalities.79 School districts and boards have been held municipal corporations within an eight-hour labor law,80 within a law requiring that a bond be taken from contractors,81 within a statute withholding equity jurisdiction over companies or corporations "of a municipal character,"82 and within the meaning of a statute requiring compulsory vaccination "in the several municipalities of the commonwealth."83 Cases in which the school districts or boards have been termed municipal corporations, when such classification has not been necessary to bring the school corporation within the operation of certain acts or provisions, seem rare. However, this has sometimes been done.84 The school district and board have also been called quasi-public corporations in a few instances.85 All of these terms have, however, denoted an incomplete corporate existence. The single exception noted is discussed in the following section. ~11. SAME-NEW YORK UNION FREE SCHOOL DISTRICTS. The union free school districts of New York State seem to have been regarded as standing on a different footing than the regular school districts. This was pointed out in the case of Bassett 79 Joint School Dist. No. 132 v. Dabney (1927) 127 Okl. 234, 260 Pac. 486. 80 State v. Wilson (1902) 65 Kan. 237, 69 Pac. 172. 81 Maxon v. Spokane County School Dist. No. 34 (1892) 5 Wash. 142, 31 Pac. 462. 82Wharton et at v. School Directors (1862) 6 Wright (Pa.) 358. 83 Commonwealth v. Butler, 76 Pa. Super. Ct. 113. 84 Marathon Twp. School Dist. No. 4 v. Gage, 39 Mich. 484, 33 Am. Rep. 421; Kenmare School Dist. No. 28 v. Cole (1917) 36 N. D. 32, 161 N. W. 542; Stroh v. Casner (1916) 201 Ill. App. 281. 85 School districts are quasi-public corporations.-First Nat. Bank of Waldron v. Whisenhunt (1910) 94 Ark. 583, 127 S. W. 968; Rural School Dist. No. 50 v. First Nat. Bank (1927) 173 Ark. 604, 292 S. W. 1012. A township incorporated for school purposes, a quasi-public corporation,-Bush v. Shipman (1843) 5 Ill. (4 Scam.) 186. "A school district is a quasi-public corporation. It is a legal entity, and a creature of legislation endowed with such powers as are defined by statute."-Courtright v. Consol. Dist. (1927) 203 Iowa 26, 212 N. W. 368. "[The school district] is in no sense a municipal corporation with its diversified powers, but is a quasi-public corporation devoted to a single purpose."-State ex rel. Carrollton School Dist. No. 1 v. Gordon (1910) 231 Mo. 547, 133 S. W. 44; State v. Milquet (1923) 180 Wis. 109, 192 N. W. 392. 20 The Legal Authority of the American Public School v. Fish, a teacher's action for damages for an injury sustained in the school room, against the trustees individually.86 The judge said that the ordinary school districts were quasi corporations, but that in creating the union free school districts, the legislature had gone farther and had created more than a quasi-corporation-had in fact set up a complete corporation.87 Therefore, the judge said, "It must act and can act only in the mode and by the means appropriate to the metaphysical being, known to the law as a corporation." It was said again in a later case, "The board of education of a union free school is a corporation proper, and not a quasi corporation, like the trustees of the ordinary school district."88 These districts have later been styled municipal corporations.89 ~12. SAME-VARIATIONS ARE LARGELY IN NAME. It seems evident that the variation in the terms employed to designate the school corporation is a variation practically only in name. The term quasi-municipal corporation implies that the school corporation is regarded as an incomplete municipality. The designation is not illogical and denotes a corporate body of the same rank as that implied by the term quasi corporation. The implication which the courts that have used the appellation "quasi-public corporation" seem to wish to convey, is that of an incomplete public corporation. This term, however, is not a desirable one. Logically it denotes a corporate body partly public and partly private. That designation is more commonly and correctly applied to the public service corporations.90 If used here, confusion is certain to result. As was pointed out, the term "municipal corporation" was applied to the school district or board practically exclusively to bring into effect constitutional or statutory provisions, and not for the purpose of putting the school corporation in the same rank with the municipal corporation proper. It seems, then, that this variation in terminology is the result of using the words "po86 (1878) 75 N. Y. 303. 87 Laws of 1864 Chap. 555, Title IX, ~5, p. 1272, and ~7, p. 1273. 88 Chrigstrom v. McGregor (1893) 74 Hun (N. Y.) 343, 26 N. Y. S. 517. 89 Union Free School Dist. No. 6 Bd. of Ed. v. Union Free School Dist. No. 7 (1902) 76 N. Y. App. Div. 355, 78 N. Y. S. 522; Union Free School Dist. No. 1 v. Glen Park (1905) 109 N. Y. App. Div. 414, 96 N. Y. S. 428. 90 See p. 7 supra. Nature of the Public School Corporation 21 litical," "municipal," and "public" interchangeably.91 The concept itself appears to be the same in practically all cases; the exceptions being the few New York cases which definitely classify the union free school districts of that state as corporations proper. ~13. CHAPTER SUMMARY. The school district and board have a legal existence which places them in the general category of those legal beings called corporations. A corporation is an artificial "person" created by law, which has perpetual succession, may sue and be sued, may make contracts, hold property, etc. Corporations may be divided into several classes some of which are corporations aggregate and sole; ecclesiastical or religious, and lay; and public and private. Public corporations may be divided into three groups, quasi-public, municipal and quasi corporations. School districts and school boards belong in the last group. The statutes of many states expressly make the school districts and boards bodies corporate; others merely infer that character. Judicial expression with practical universality term the school district and board a quasi corporation, which means that they are not complete corporations but are bodies granted corporate character for the limited purpose of their creation only. Some variation in terminology exists, school districts and boards being occasionally called quasi-public corporations, and quite frequently quasi-municipal corporations. This variation arises largely from a synonymous use of terms, and usually does not indicate that the school corporations are regarded as differing in nature. The union free school districts of New York State are the only instances of a school district being termed a complete corporation. 91 Curry v. Dist. Twp. of Sioux City (1883) 62 Iowa 102, 17 N. W. 191. CHAPTER II The Legal Position of the Public School Corporation Analysis of Chapter SECTION PAGE Scope of chapter..................-........... 14 22 The school corporation and the state Constitutional provisions....... —..... —..... ---. 15 22 School corporations state agencies...-................ 16 25 Legislative control in general........-......- 17 30 Illustrated by territorial division and apportionment 18 32 The school corporation and the municipality in general...19 35 The courts on municipal school control General independence-.................. --- 26 37 School dependence............. --- ——.. 21 40 Dual control -.. --- —----- - 22 43 Chapter summary..... ----.................... ---. 23 45 ~14. SCOPE OF CHAPTER. The preceding chapter has pointed out that the school district and board is a corporation, and has classified the school body as a quasi corporation. It is the purpose of this chapter to indicate the position that the school quasi corporation occupies in the law. In general, two questions are answered in the chapter: (1) What is the relation between the school corporation and the state? (2) What is the relation between the school corporation and the city? ~15. THE SCHOOL CORPORATION AND THE STATE-CONSTITUTIONAL PROVISIONS. Congress sitting under the Articles of Confederation, provided for its first territorial government. For this purpose it passed on July 13, the Ordinance of 1787, "for the government of the territory of the United States northwest of the river Ohio." It was ordained in this great document that these articles should be considered as articles of compact "between the thirteen original states and the people of the states in the Northwestern Territory." Article III of that compact included the following: "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall Legal Position of the Public School Corporation 23 forever be encouraged." This part of Article III of the Ordinance of 1787, a document older by two years than the Constitution of the United States, is the forerunner of all educational statutes and constitutional provisions in the various states. The Constitution of the United States has, however, no provision relating to education. The establishment and maintenance of a common school system is not one of the powers given to Congress. Hence, since our Federal Government is one of enumerated powers, this power or duty is one of those reserved to the states. Mr. Chief Justice Waite said in United States v. Cruikshank, "The government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the states or the people."' The several states of the Union, recognizing the tremendous importance of educating its future citizenry, have made suitable provisions in their constitutions-the most formal expressions of the convictions of the people-for the establishment of public systems of free schools. The people of the state of Washington have expressed this in these words: "It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex."2 Among the provisions of the Bill of Rights in the North Carolina Constitution, is included the following statement: "The people have the right to the privilege of education, and it is the duty of the State to guard and maintain that right."3 The general provision in the case of Michigan and North Carolina follows the identical wording of the provision on education in Article III of the Ordinance of 1787, quoted above.4 There is much similarity found in the forms of the general provisions used in thy constitutions of the states of Texas, California, Indiana, Maine, Massachusetts, Missouri, 1 (1876) 92 U. S. 542, 23 L. Ed. 588. 2AArt. IX, ~1, Wash. State Const. 3 Art. 1, ~27. 4 Mich. State Const. Art. XI, ~1; N. C. State Const. Art. IX, ~1. 24 The Legal Authority of the American Public School Rhode Island, and New Hampshire.5 The general provision in the Texas Constitution is typical of the group: "A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provisions for the support and maintenance of an efficient system of public free schools."6 The forms employed in the constitutions of Idaho, North Dakota, South Dakota and Minnesota are also somewhat similar to that in the Ordinance of 1787.7 The general provision of the Idaho Constitution is typical of the group: "The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools."8 The constitutions of Nevada, Mississippi, and Kansas have general educational provisions much alike in form, though quite dissimilar to the wording of the provision of the Ordinance of 1787.9 The provision in the Nevada Constitution is illustrative: "The legislature shall encourage, by all suitable means, the promotion of intellectual, literary, scientific, mining, mechanical, agricultural and moral improvements;..."10 Most of the other state constitutions merely direct in simple language that a system of free public schools shall be established and maintained. The two or three examples following will suffice as illustrations: Maryland. "The General Assembly, at its first session after the adoption of this constitution, shall by law establish 5 Texas State Const., Art. VII, ~1; Calif. State Const., Art. IX, ~1; Ind. Stat Const., Art. VIII, ~1; Me. State Const., Art. VIII; Mass. State Const., Chap. V, ~2; Mo. State Const., Art. XI, ~1; R. I. State Const., Art. XII, ~1; N. H. State Const., Art. 82. 6 Supra. 7 Idaho State Const., Art. IX, ~1; N. D. State Const., Art. VIII, ~147; S. D. State Const., Art. VIII, ~1; Minn. State Const., Art. VIII, ~1. 8 Supra. 9 Nev. State Const., Art. XI, ~1; Miss. State Const., Art. VIII, ~201; Kan. State Const., Art. VI, ~2. 10 Supra. Legal Position of the Public School Corporation 25 throughout the State a thorough and efficient system of free public schools, and shall provide by taxation, or otherwise, for their maintenance."' New Mexico. "A uniform system of free public schools sufficient for the education of, and open to, all the children of school age in the state shall be established and maintained."12 Wyoming. "The legislature shall provide for the establishment and maintenance of a complete and uniform system of public instruction, embracing free elementary schools of every needed kind, and grade, a university, with such technical and professional departments as the public good may require and the means of the state allow, and such other institutions as may be necessary."'3 ~16. SAME-SCHOOL CORPORATIONS STATE AGENCIES. We have seen that the constitutions of the various states have enjoined upon the legislatures thereof the establishment and maintenance of a system of free public schools. This has been carried out, and in the execution, school corporations have been created. What, then, is the relation between the creation and the creator-the school district and board, and the state? An examination of the decisions of the various courts of record show a unanimity practically without exception in the declaration that the school corporation is an agency of the state government in the execution of its educational policy as expressed in the state constitutions.14 11 State Const. (1867) Art. VIII, ~1. 12 State Const., Art. XII, ~1. 13 State Const., Art. VII, ~1. 14Arizona: School district, an agency of the state.-School Dist. No. 48 v. Rivera (1926) 243 Pac. 609, 45 A. L. R. 762. California: School districts, agents, trustees and political divisions of the state.-Fawcett v. Ball (1926) 80 Cal. App. 131, 251 Pac. 679; 23 Cal. Jur., ~14. Colorado: Guyer v. Stutt (1920) 68 Colo. 422, 191 Pac. 120; Florman v. School Dist. No. 6 (1895) 6 Colo. App. 319, 40 Pac. 469; Olson Lumber Co. v. School Dist. No. 8 (1928) 83 Colo. 272, 263 Pac. 723. Connecticut Ogden v. Raymond (1853) 22 Conn. 379, 58 Am. Dec. 429. Georgia: Nabell v. City of Atlanta (1925) 33 Ga. App. 545, 126 S. E. 905. Iowa: Lane v. Dist. Twp. of Woodbury (1882) 58 Iowa 462, 12 N. W. 478; Waddell v. Bd. of Dirs. (1919) 190 Iowa 400, 175 N. W. 65; Valentine v. School Dist. of Casey (1921) 191 Iowa 1100, 183 N. W. 434. Illinois: Clinton County School Trustees v. Tatman (1851) 13 Ill. 28; Adams v. Brennan (1898) 177 Ill. 194, 52 N. E. 314; Kinnare v. City of Chicago (1898) 171 Ill. 332, 49 N. E. 536; People v. Bd. of Ed. of Paris 26 The Legal Authority of the American Public School Thus Justice Butler of the Supreme Court of Colorado said: "A school district is a subdivision of the state for educational purposes. The several officers charged with the supervision of the schools, from the state board of education down to the directors of the school districts, are merely the instruSchool Dist. (1912) 255 Ill. 568, 99 N. E. 657; Melin v. School Dist. No. 76 (1924) 312 Ill. 376, 144 N. E. 13. Indiana: Freel v. School City of Crawfordsville (1895) 142 Ind. 21, 41 N. E. 312. Kansas: Counties, townships and school districts are political subdivisions and agencies in the administration of civil government.-Beach v. Leahy (1873) 11 Kan. 28; McGraw v. Rural Dist. No. 1 (1926) 120 Kan. 413, 243 Pac. 1038. Kentucky: School Districts are "incorporated governmental agencies of the state."- Bd. of Ed. of Newport v. Scott (1920) 189 Ky. 225, 224 S. W. 680. Duty of providing public education a governmental duty.Clark v. City of Nicolasville et al. (1905) 27 Ky. L. Rep. 974, 87 S. W. 300. Board of education an instrumentality of the law in government and maintenance of public schools.-Booth v. Bd. of Ed. (1921) 191 Ky. 147, 229 S. W. 84. Louisiana: School boards state agencies.-Horton v. Bienville Parish (1927) 4 L. App. 123. Massachusetts: Hill v. City of Boston (1877) 122 Mass. 344, 23 Am. Rep. 332; McKenna v. Kimball (1888) 145 Mass. 555, 14 N. E. 789. Michigan: School district state agency of legislative creation.-AttyGen. v. Lowrey (1902) 131 Mich. 639, 92 N. W. 289; see also: Same (1905) 199 U. S. 233, 26 S. Ct. 27, 50 L. Ed. 167; Child Welfare Society v. School Dist. (1922) 220 Mich. 290, 189 N. W. 1002; Whitehead v. Bd. of Ed. of Detroit (1905) 139 Mich. 490, 102 N. W. 1028; Daniels v. Bd. of Ed. of Grand Rapids (1916) 191 Mich. 339, 158 N. W. 23. Minnesota: Management of public schools a branch of state government.-Bd. of Ed. of Sauk Centre v. Moore (1871) 17 Minn. 412 (Gil. 391); Bank v. Brainerd School Dist. (1892) 49 Minn. 106, 51 N. W. 814; Allen v. School Dist. No. 17 (1927) -- Minn. --, 216 N. W. 533. Mississippi: Consolidated school district and agricultural high school, governmental subdivisions and agencies exercising governmental functions.-Nabors v. Holly Bluff Consol. Dist. (1924) 135 Miss. 608, 100 So. 177; Ayres v. Bd. of Trustees (1924) 134 Miss 363, 98 So. 847. Missouri: Management of all state public schools a branch of state government.-McClure v. School Dist. of Tipton (1899) 79 Mo. App. 80; Heller v. Stremmel (1873) 52 Mo. 309; O'Connell v. Bd. of President and Dirs. of St. Louis Schools (1892) 112 Mo. 213, 20 S. W. 484; Cochran v. Wilson et al. (1921) 287 Mo. 210, 229 S. W. 1050; Dick v. Bd. of Ed. of St. Louis (1922) 238 S. W. 1073; Krueger v. Bd. of Ed. of St. Louis (1925) 310 Mo. 239, 274 S. W. 811. New York: Board of education, state political subdivisions.-Reynolds v. Bd. of Ed of Little Falls (1898) N. Y. App. Div. 88, 53 N. Y. S. 75. Jaked v. Bd. of Ed. of Albany (1921) 189 N. Y. S. 697 (reversing judgment 185 N. Y. S. 88); Herman v. Bd. of Ed. of Dist. No. 8 (1925) 234 N. Y. 196, 137 N. E. 24 (affirming judgment, 191 N. Y. S. 930); Ham v. City of N. Y. (1877) 70 N. Y. 459, affirming 37 N. Y. Super. Ct. (5 Jones & S.) 458; Rhall v. N. Y. Bd. of Ed. (1899) 40 N. Y. App. Div. 412, 57 N. Y. S. 977; Katterschinsky v. Bd. of Ed. of N. Y. City (1925) 215 App. Div. 695, 212 N. Y. S. 424. But see People v. Haywood (1897) 19 N. Y. App. Div. 46, 46 N. Y. S. 1083,-union free school districts not within meaning of act requiring all public departments of state, cities, counties, Legal Position of the Public School Corporation 27 ments of the state government, chosen for the purpose of effectuating its policy in relation to schools.... The school district is created as a means for the more convenient and effective carrying out of the educational policy of the state.... And school officers and school districts are merely the agencies through which it acts in the performance of duties with which it is charged by the constitution."15 Speaking for the Supreme Court of Indiana, Monks, J., said that, "School corporations in this state are a part of the educational system of the state.... Such corporations are but agents of the state for the sole purpose of administering the state system of public education.... Such subdivisions, then as counties, townships, and school corporations, are instrumentalities of government, and exercise authority given by the state,."16 towns and villages to prefer honorably discharged veterans in appointment. North Dakota: Pronovost v. Brunette (1917) 36 N. D. 288, 162 N. W. 300; Anderson v. Bd. of Ed. of Fargo (1922) 49 N. D. 181, 190 N. W. 807. Ohio: Finch v. Bd. of Ed. of Toledo (1876) 30 Ohio St. 37, 27 A. Rep. 414; Bd. of Ed. of Cincinnati v. Volk (1905) 72 Ohio St. 469, 74 N. E. 646. Oklahoma: School district, subordinate agency of territory.-School Dist. No. 17 v. Zediker (1896) 4 Okl. 599, 47 Pac. 482; School Dist. No. 1 v. Wright (1927) 128 Okl. 193, 261 Pac. 953. Oregon: Spencer v. School Dist. No. 1 (1927) 121 Ore. 51, 254 Pac. 357; Jacobberger v. School Dist. No. 1 (1927) 122 Ore. 124, 256 Pac. 652. Pennsylvania: School districts, territorial divisions for purpose of common school laws.-School Dist. of Erie v. Fuess (1881) 98 Pa. 600, 42 Am. Rep. 627. Ford v. School Dist. of Kendall Borough (1888) 121 Pa. 543, 15 Atl. 812; Lyon v. Strock (1922) 274 Pa. 541, 118 Atl. 432; Gilbertson School Dist. v. Morris (1927) 290 Pa. 7,137 Atl. 864. South Carolina: School townships, county divisions for "governmental" purposes.-Gallishaw v. Jackson (1914) 99 S. C. 342, 83 S. E. 454. Texas: School districts, "governmental agencies." Floydada Indep. School Dist. v. Shipley (1922) 238 S. W. 1026; Hendricks v. State (1899) 20 Tex. Civ. App. 178, 49 S. W. 705. Utah: School districts, corporations acting in behalf of the state.Woodcock v. Bd. of Ed. of Salt Lake City (1920) 55 Utah 458, 187 Pac. 181. Washington: School districts, instruments of state, and their functions, governmental.-Howard v. Tacoma School Dist. No. 10 (1915) 88 Wash. 167, 152 Pac. 1004. West Virginia: School corporations, agents of state.-Herald v. Bd. of Ed. (1909) 65 W. Va. 765, 65 S. E. 102; Krutili v. Bd. of Ed. of Butler Dist. (1925) 99 W. Va. 466, 129 S. E. 486. Wisconsin: Iverson v. Union Free High School Dist. (1925) 186 Wis. 342, 202 N. W. 788; Juul v. School Dist. of Manitowoc (1918) 168 Wis. 111, 169 N. W. 309. 15 Florman v. School Dist. (1895) 6 Colo. App. 319, 40 Pac. 469. 16 Freel v. School City of Crawfordsville (1895) 142 Ind. 21, 41 N. E. 312. 28 The Legal Authority of the American Public School In an Iowa case, where an action had been brought against a school district to recover damages for an injury to a pupil resulting from alleged negligence, the following was stated in the decision of the Supreme Court: "A school district is... created by statute for the purpose of executing the general laws, and the policy of the state, which requires the education of all its youth. It is a branch of the state government, and an instrument for the administration of the laws... " These three extracts illustrate the view taken in all the states whose decisions are cited under the general statement of this section. In the course of this survey only one exception was noted. That was in a recent Florida case. In an action to recover damages on a contract from a board of public instruction of a county, Justice Buford, speaking for the Supreme Court said: "It is contended that the board of public instruction of the county is merely a branch of the sovereignty of the state itself. We take the contrary view. The board of public instruction of a county is a county instrumentality, a corporation organized to conduct certain affairs in that particular county, and occupies the status of a trustee for the purposes for which it is created as to county property and county funds."'8 The usual view also applies to city boards of education. Thus, the boards of education of Toledo,19 Cincinnati,20 Saint Louis,21 Chicago,22 and New York City 23 are considered agencies of the state government. The work of the public schools has been declared a governmental function. In a decision in which the functions of the board of education of Albany, New York was characterized 17 Lane v. Dist. Twp. of Woodbury (1882) 58 Iowa 462, 12 N. W. 478. 18 First Nat'l Bank v. Bd. of Public Inst. (1927) -- Fla. -, 111 So. 521. 19 Finch v. Bd. of Ed. of Toledo (1876) 38 Ohio St. 37, 27 Am. Rep. 414. 20 Bd. of Ed. of Cincinnati v. Volk (1905) 72 Ohio St. 469, 74 N. E. 646. 21 Heller v. Stermmel (1875) 52 Mo. 309; O'Connell v. Bd. of President and Dirs. of St. Louis Pub. Schools (1892) 112 Mo. 213, 20 S. W. 484; Cochran v. Wilson et al. (1921) 287 Mo. 210, 229 S. W. 1050; Dick v. Bd. of Ed. of St. Louis (1922) 238 S. W. 1073; Krueger v. Bd. of Ed. of St. Louis (1925) 310 Mo. 239, 274 S. W. 811. 22 Adams v. Brenan (1989) 177 111. 194, 52 N. E. 314; Kinnare v. City of Chicago (1898) 171 Ill. 332, 49 N. E. 536. 23 Ham v. City of New York (1877) 70 N. Y. 459. Legal Position of the Public School Corporation 29 as governmental, it was also stated that, "the state imposes some of its duties upon municipalities and agencies, authorizing departments of police, charity, fire, education and highways. These agencies are for the efficient exercise of these governmental functions."24 Thus it has been declared that the affairs of the board of education of the city of Detroit "are as purely a state function as those of the board of health."25 It is not merely the actual work of instruction that is spoken of as governmental, but a great variety of work connected with the management, maintenance, and operation of the school system. Thus the erection of school buildings is a governmental function.26 The maintenance of a school house is also deemed a governmental duty.27 Even the putting down of a tree on a school lot has been declared done in the discharge of a public duty.28 Thus also the installation and maintenance of manual training equipment 29 and playground apparatus 30 is declared done in the exercise of governmental capacity and the performance of a state function. Members of school boards, directors and trustees are generally held to be public officers acting for the state. Thus in a Connecticut case it was held that since a school trustee derived his official character from the general law, and was elected by the people of the particular district, he was a public officer.31 In Texas it was held that under the statute providing for the election, duties, oath and term of office of trustees of school districts, such trustees are public officers and are intrusted with a part of the sovereign function of the state,32 although it was also held that these school officers came under a statute providing for the removal of county officers from office. Judge McCoy of the South Dakota Supreme Court has said in respect 24Jaked v. Bd. of Ed. of Albany (1921) 189 N. Y. S. 697 (reversing judgment 185 N. Y. S. 88). 25 Whitehead v. Bd. of Ed. (1905) 139 Mich. 490, 102 N. W. 1028. 26 McGraw v. Rural Dist. No. 1 (1926) 120 Kan. 415, 243 Pac. 1038. 27 Daniels v. Bd. of Ed. of Grand Rapids (1916) 191 Mich. 339, 158 N. W. 23. 28 McKenna v. Kimball (1888) 145 Mass. 555, 14 N. E. 789. 29 Nabell v. City of Atlanta (1925) 33 Ga. App. 545, 126 S. E. 905. 39 Anderson v. Bd. of Ed. of Fargo (1922) 49 N. D. 181, 190 N. W. 807. 31 Ogden v. Raymond (1853) 22 Conn. 379, 58 Am. Dec. 429. 32 Hendricks v. State (1899) 20 Tex. Civ. App. 178, 49 S. W. 705. 30 The Legal Authority of the American Public School to school officers: "Members of a board of education fall within this class of officers who represent the king or who represent the sovereign power of the state in public official capacity."33 But in Guyer v. Stutt, a Colorado case, the Supreme Court of that state held in 1920 that a constitutional article dealing with recall from office did not apply to school directors. It was said that the words "elective public officers of the state," which are used in an amendment, did not include school officers. The fact, the court held, that school officers acted by authority of state law did not make them state officers.34 ~17. SAME — LEGISLATIVE CONTROL IN GENERAL. The preceding section has shown that the school district is a subdivision of the state; that the school board is an agency of the state government for the exercise of the governmental function of educating its youth-a duty imposed upon the legislature by the state constitution. The question now to be considered is: what control may the state exert through its legislature over these its political subdivisions and their boards? An examination of the decisions of such courts as have had occasion to pass upon this question shows that such legislative control is absolute in all respects, being limited only by those constitutional provisions that may exist to curb such control.35 33 Plumbing Supply Co. v. Bd. of Ed. of Canton (1913) 32 S. D. 270, 142 N. W. 1131 (modifying judgment on re-hearing 32 S. D. 129, 142 N. W. 260). 34 Guyer v. Stutt, 68 Colo. 422, 191 Pac. 120. 35 Califronia: Pass School Dist. v. Hollywood School Dist. (1909) 156 Cal. 416, 105 Pac. 122; Malaley v. City of Marysville (1918) 37 Cal. App. 638, 174 Pac. 367; Fawcett v. Ball (1926) 80 Cal. App. 131, 251 Pac. 679; McCabe v. Carpenter (1894) 102 Cal. 469, 36 Pac. 836. Colorado: Olson Lumber Co. v. School Dist. No. 8 (1928) 83 Colo. 272, 263 Pac. 723. Iowa: Waddell v. Bd. of Directors (1919) 190 Iowa 400, 175 N. W. 65; Valentine v. School Dist. of Casey (1921) 191 Iowa 1100, 183 N. W. 434. Illinois: Bush v. Shipman (1843) 5 Ill. (4 Scam.) 186; Clinton County School Trustees v. Tatman (1851) 13 Ill. 28; People v. Bd. of Paris (1912) 255 Ill. 568, 99 N. E. 659. Kansas: State v. Elk County (1899) 61 Kan. 90, 58 Pac. 959. Massachusetts: Inhabitants of Dist. No. 1 v. Richardson (1839) 40 Mass. (23 Pick.) 62. Michigan: Atty-Gen. v. Lowrey (1902) 131 Mich. 639, 92 N. W. 289; Same (1905) 199 U. S. 233, 26 S. Ct. 27, 50 L. Ed. 167; Child Welfare Society v. School Dist. (1922) 220 Mich. 290, 189 N. W. 1002. New York: Union Free School Dist. No. 6 v. Union Free School Dist. Legal Position of the Public School Corporation 31 Thus where an Illinois school district sold a ferry franchise, and stipulated in its contract of sale certain conditions, the legislature decided that the conditions need not be performed, and retrieved the franchise. The Supreme Court upheld this action, and in speaking for the court Judge Treat said: "A grant of this character to a public corporation may at any time be resumed by the state. It is not like the case of the grant of a franchise to an individual or a private corporation. Public corporations... are subject to be changed, modified, or destroyed as the exigencies of the public may demand. The state may exercise a general superintendence and control over them and their rights and effects, so that their property is not divested from the uses and objects for which it was given or purchased. That the trustees of schools are corporations of this character and subject to be regulated and controlled by the legislature is fully established...."36 The Supreme Court of Michigan said in 1922 in the case of Child Welfare Society v. School District: "The Legislature has entire control over the schools of the state, subject only to the [constitutional provisions]. The division of the territory of the state into districts, the conduct of the school, the qualifications of the teachers, the subjects to be taught therein, are all within its control."37 Thus, an act arbitrarily establishing a high school district and making its maintenance mandatory upon the people of a county was held valid, and not an unconstitutional interference with the right of local self-government.38 The legislature has exclusive control over the use and disposition of school property.39 In a case questioning such property control, the Supreme Court of Iowa said that the district's property is No. 7 (1902) 76 N. Y. App. Div. 355, 78 N. Y. S. 522. North Dakota: Pronovost v. Brunette (1917) 36 N. D. 288, 162 N. W. 300. Oklahoma: School Dist No. 17 v. Zediker (1896) 4 Okl. 599, 47 Pac. 482. Texas: Floydada Indep. School Dist. v. Shipley (1922) 238 S. W. 1026. Washington: Redfield v. School Dist. No. 3 (1907) 48 Wash. 85, 92 Pac. 770. 36 Clinton County School Trustees v. Tatman (1851) 13 Ill. 28. 37 220 Mich. 290, 189 N. W. 1002. 38 State v. Elk County (1899) 61 Kan. 90, 58 Pac. 959. 39 Fawcett v. Ball (1926) 80 Cal. App. 131, 251 Pac. 679; Olson Lumber Co. v. School Dist. No. 8 (1928) 83 Colo. 372, 263 Pac. 723. 32 The Legal Authority of the American Public School obtained only through the exercise of the legislative power of taxation, therefore such property always remains subject to legislative mandate.40 "The legislature has the power to direct in what manner the school funds shall be loaned, upon what security, at what rate of interest, in what currency they shall be received and by whom they shall be applied."'4 It has been held that the legislature has the right to grant a city the power to select a superintendent of schools and provide for his compensation, even though the limits of the school district extend beyond those of the municipality.42 It has been held a state legislature may make it compulsory for a city school district to insure with a state fire and tornado fund, although such insurance was made optional as to districts outside the limits of an incorporated city or village.43 So also the legislature of a state has been held empowered to make a school district responsible to actions in tort. Judge Dunbar, speaking for the Supreme Court of Washington has said: "The school district is a creation of the statute, and the state is not limited in its authority over the district, and would have power to make it responsible in the performance of governmental duties as well as any other kind of duties."44 The extent of the legislative control of the school district is nowhere more clearly seen than in those cases that deal with the power of the legislature to split up, add to, or destroy existing districts. ~18. SAME -AS ILLUSTRATED BY TERRITORIAL DIVISION AND APPORTIONMENT. In a fairly recent case in the state of Texas, a taxpayer attempted to attack the incorporation of a school district to which territory had been added irregularly. The court held that only the state could by direct proceedings make such attack, Chief Justice Huff saying that "School districts are governmental agencies, and are within the continued exclusive control of the Legislature. They may be enlarged, diminished, or extinguished by the Legislature, except in so 40 Waddell v. Bd. of Dirs. (1919) 190 Iowa 400, 175 N. W. 65. 41 Bush v. Shipman (1843) 5 Ill. (4 Scam.) 186. 42 Malaley v. City of Marysville (1918) 37 Cal. App. 638, 174 Pac. 367. 43Minot Special School Dist. v. Olsness (1926) 53 N. D. 683, 208 N. W. 968, 45 A. L. R. 1337. 44 Redfield v. School Dist. No. 3 (1907) 48 Wash. 85, 92 Pac. 770. Legal Position of the Public School Corporation 33 far as restrained by the Constitution. This power is absolute with respect to enlarging or diminishing the agency established or recognized by the Legislature."45 The legislature of the territory of Oklahoma passed an act in 1893 investing the county superintendents of public instruction with the power to divide the counties up into school districts, and to change those districts when in the discretion of the superintendents the interests of the inhabitants required such divisions or changes. The power of the legislature to pass such an act was challenged. The Supreme Court, however, upheld the statute saying that the school district was a creature of the legislature and therefore the assembly could create or abolish or change the boundaries of such districts without consulting the inhabitants. This it could do directly for any reason satisfactory to itself, or invest its exercise in a subordinate agency or officer.46 Judge Morton of the Massachusetts Supreme Court said in 1839: "... school districts are corporations... of precarious existence. They may not only be verified and modified in the extent of their territorial limits, but also annihilated, by a body over which they have no control."47 The legislature of California took land from one school district and added it to another. The district which lost its property objected that the act which made the transfer was unconstitutional and therefore void, since it was taking property without due process of law. The court, however, held the act valid. It said the legislative power over school districts was plenary-full and complete, and that the legislature might divide, change or abolish them at pleasure. The state, it was said, was the beneficial owner of the property, and when the transfer was made, it amounted merely to the owner's designating new trustees to hold its own property.48 Article I, Section 10 of the Constitution of the United States declares that, "No state shall... pass any... Law impairing the Obligation of Contracts....." This provision has 45 Floydada Indep. School Dist. v. Shipley (1922) 238 S. W. 1026. 46 School Dist. No. 17 v. Zediker (1896) 4 Okl. 599, 47 Pac. 482. 47 Howard v. City of Worcester, 40 Mass. (23 Pick.) 62. 48 Pass School Dist. v. Hollywood School Dist. (1909) 156 Cal. 416, 105 Pac. 122. 34 The Legal Authority of the American Public School frequently been appealed to in an effort to have arbitrary legislative control of school corporations declared unconstitutional, but without success. Thus when the legislature of the state of Michigan passed an act in 1901 joining certain lands formerly belonging to several districts, and also requiring the new district to pay the debts of the old districts, appeal was made to the United States Supreme Court, one of the objections being that the act was unconstitutional as impairing the obligation of a contract between the state and the districts. The Court denied the validity of the contention by citing a former decision 49 thus: " 'Institutions of the kind, whether called counties or towns, are the auxiliaries of the state in the important business of municipal rule, and cannot have the least pretention to sustain their privileges or their existence upon anything like a contract between them and the legislature of the state, because there is not and cannot be any reciprocity of stipulation, and their objects and duties are utterly incompatible with everything of the nature of compact.' "50 It has been pointed out that only constitutional limitations restrain the power of legislative control. In the California case of McCabe v. Carpenter, it was held that such a limit had been reached.51 There the legislature gave the county superintendent of schools the power to levy any tax he might deem desirable for high school purposes, without control either by a local board or the inhabitants. The court held that under Article II, Section 12 of their constitution, the act was illegal. The constitution prohibited the legislature from imposing taxes on counties, cities or other public or municipal corporations for municipal purposes, although it did allow the vesting of corporate authorities with the power to assess taxes for such purposes. A further illumination on the extent of legislative control is made in the next chapter as shown by a study of the powers of the school corporation. The extent of such control is also 49 Laramie County v. Albany County et al. (1875) 92 U. S. 307. 50 Atty-Gen. v. Lowrey (1905) 199 U. S. 233, 26 S. Ct. 27, 50 L. Ed. 167. 61 (1894) 102 Cal. 459, 36 Pac. 836. Legal Position of the Public School Corporation 35 seen in an examination of the liabilities of the district, its board and officers.52 ~19. THE SCHOOL CORPORATION AND THE MUNICIPALITY IN GENERAL. We have seen that the school corporation is an agency of the state in the exercise of a state function. No more need be said concerning the status of rural school districts. City school districts, however, often have boundaries coterminous with those of the municipal corporations in which they are located. Indeed, the municipal corporation often exerts certain direct controls over the school corporation. The question here then, is: what is the legal status of the city school corporation in relation to the municipality? The degree of independence of the city school system has been the subject of considerable controversy in late years, which has resulted in several studies of the situation. W. S. Deffenbadgh, of the Federal Bureau of Education, made a study in 1916, of the situation in cities with a population of more than 25,000.53 He reported that in cities with a population of 100,000 or more, 64 per cent of the school boards were elected by the people, but 22 per cent were appointed by the mayor, 7 per cent by the city council or commission, and 7 per cent by the courts. "In cities having between 25,000 and 100,000 population 79 per cent [were] elected by popular vote, 16 per cent appointed by the mayor, and 5 per cent by the council or commission.""54 Variations were pointed out in the law governing the schools of these cities. In 77 per cent of the cities between 25,000 and 100,000, and 57.5 per cent of cities with 100,000 or more population the schools were governed entirely by general state law. In the first group of cities 9.5 per cent, and in the second, 25 per cent were governed by both state law and city charter; and in the first 13.5, and in the second 17.5 per cent of the schools were governed entirely by special charter.65 Deffenbaugh also investigated the degree of fiscal control 52 See Chaps. V, VI and VII. 53 Deffenbaugh, W. S. Current Practice in City School Administration. Bureau of Educ. Bull. No. 8. 54 Ibid, p. 1 55 Ibid, p. 9-10. 36 The Legal Authority of the American Public School these various municipalities exerted over their schools. He reports that, "In 35 per cent of the cities of 100,000 or more population the school board makes up its annual budget without referring it to any other body or officer; in 25 per cent the board refers it to the mayor, city council, commission, or board of aldermen; in 32 per cent to a board of estimate; and in 8 per cent, to county commissioners. In 52 per cent of the cities having between 25,000 and 100,000 population the school board makes up its annual budget without referring it to any other body or officer; in 21 per cent the board refers it to the mayor, city council, commission, or board of aldermen; in 18 per cent, to a board of estimate; in 4 per cent to the county board of supervisors; in 3 per cent, to the taxpayers; in 1 per cent, to the State tax commission; and in 1 per cent to the comptroller."56 McGaughy made a study of such fiscal control in 377 cities.57 He classified the city boards of education into three groupsindependent, dependent and special.58 He found that 178 or 47.21 per cent of the 377 boards were independent fiscally as to municipal control, 97 or 25.73 per cent of the boards were dependent, and 102 or 27.06 per cent belonged to the special group. Of the 178 independent boards, 20 were appointed and 158 elected; of the 97 dependent boards 42 were appointed and 55 elected; and of the 102 in the special group, 15 were appointed and 87 elective.59 Other studies reveal these same conditions, though there is a movement toward making boards elective rather than appointive, and fiscally independent as to municipal control.60 The controversy that has been aroused over municipal control of city schools has naturally been reflected in the courts. 5 Ibid, p. 10. 57 McGaughy, J. R. Fiscal Administration of City School Systems. 58 Special-included certain districts which were required to submit their budgets to other than municipal authorities for approval. 59 Ibid. Adapted from Table 40, Appendix A, p. 49. 60 Morrison, John Cayce. The Legal Status of the City School Superintendent; Frazier, George W. The Control of City School Finances; Deffenbaugh, W. S. Shall boards of education be independent of municipal government? Amer. School Bd. Jour., Aug. 1924, p. 46; Morehart, Grover Cleveland. The Legal Status of City School Boards; Engelhart, Nicolaus Louis. Public School Business Administration. Legal Position of the Public School Corporation 37 These decisions should reveal the true municipality-school relationship. ~20. THE COURTS ON MUNICIPAL-SCHOOL CONTROL-GENERAL INDEPENDENCE. Since school districts and boards have been quite universally held agents of the state in the exercise of a state function, it would be natural to expect the city school corporation to be a distinct and separate entity from the municipality in which it may be located. Generally speaking this has been held to be the case.6' "Each school district in Missouri," said the Supreme Court of that state, "is a body corporate; separate legal entity, created and governed by law, and its boundaries, privileges, and liabilities are measured by law, and they can only be changed by the law of this state; and we have always held their exist61 Alaska: Ketchikan v. Strong (1918) 6 Alaska 114. Arizona: All school districts are separate and distinct legal entities and they can sue and be sued in their own names. Bonds issued evidence the indebtedness of the district and not the county.-Jarvis v. Hammons (1927) -- Ariz. - 256 Pac. 362. California: City school district is not merged with the city even though their territorial limits are coterminous. - Wood v. Calaveras County (1913) 164 Cal. 398, 129 Pac. 283. Malaley v. Marysville (1918) 37 Cal. App. 638, 174 Pac. 367. Indiana: Carmichael v. Lawrence (1872) 47 Ind. 554; McLaughlin v. Shelby Twp. (1875) 52 Ind. 114; Jackson Twp. v. Barnes (1876) 55 Ind. 136; Wright v. Stockman (1877) 59 Ind. 65; Princeton School Town v. Gilhart (1878) 61 Ind. 187; Utica Twp. v. Miller (1878) 62 Ind. 230; Inglis v. Hughes (1878) 61 Ind. 212; Jarvis v. Robertson (1890) 126 Ind. 281, 26 N. E. 182; Heinl v. Terre Haute (1903) 161 Ind. 44, 66 N. E. 450. A school township is a distinct legal entity from that of the civil township.-Teeple v. State (1908) 177 Ind. 268, 86 N. E. 49. Kansas: "... the board of education of the city of Topeka is a distinct corporation from the municipal corporation of the city of Topeka." Knowles v. Topeka Bd. of Ed. (1885) 33 Kan. 692, 7 Pac. 561. Bd. of Ed. v. DeKay (1893) 13 S. Ct. 706, 148 U. S. 591, 37 L. Ed. 573. Maryland: Hooper v. Farnen (1897) 85 Md. 587, 37 Atl. 430. Massachusetts: Morse v. Ashley (1906) 193 Mass. 294, 79 N. E. 481. Michigan: The members of the Port Huron board of education are not city officers and hence not removable by the common council.-People v. Bd. of Ed. of Port Huron (1878) 39 Mich. 635. Even though the territorial limits of a civil township may be coterminous with those of a school district, the two corporations are separate and distinct entities.People v. Munising Twp. (1921) 213 Mich. 629, 182 N. W. 118. School Dist. No. 1 v. Joint Twp. Bd. (1925) 233 Mich. 327, 207 N. W. 5. Missouri: State ex ret Lowe v. Henderson (1898) 145 Mo. 329, 46 S. W. 1076. Buchanan County. School Dist. No. 7 v. St. Joseph School Dist. (1904) 184 Mo. 140, 82 S. W. 1082. New Mexico: Albuquerque Water Supply Co. v. Albuquerque (1898) 9 N. M. 441, 54 Pac. 969; Bd. of Ed. of Eddy v. Bitting (1899) 9 N. M. 588, 58 Pac. 395. 38 The Legal Authority of the American Public School ence as corporations is distinct from the municipalities in which are or may be formed."62 When an action was brought against the City of Fargo, North Dakota to recover damages for the death of a child caused by defective school playground apparatus, Chief Justice Grace of the Supreme Court said, in part, "... the board of education of the city of Fargo is a distinct corporate entity from the municipal corporation of the city of Fargo and... the former has control and dominion over all the schools of Fargo including the school buildings, school grounds, and school playgrounds, all school apparatus, the right to buy or sell school property, the right to issue bonds for school purposes, and the right to sue and be sued, and this free and clear from any right of interference by the city of Fargo, so if the plaintiff has any cause of action... it is not against the city of Fargo, but against the board of education....63 A water-supply company contracted to furnish water to the city of Albuquerque, New Mexico to be used for "city purposes." The question arose as to whether it was a city purpose to furnish water for the public schools of the city. In answer to this question, Judge McFie, speaking for the court spoke as follows: "These boards of education may contract with the city itself in which they are located. They may also sue and be sued, and thus they are vested with power to antagonize, and even sue, the city, of which it is contended, they form a part. "The legislature intended these school boards to be separate and distinct corporations, not municipal, but for school pur62 Buchanan County School Dist. No. 7 v. St. Joseph School Dist. (1904) 184 Mo. 140, 82 S. W. 1082. North Dakota: Anderson v. City of Fargo (1922) 48 N. D. 722, 186 N. W. 378. Ohio: Diehm v. Cincinnati (1874) 25 Ohio St. 305, affirming 5 Ohio Dec. 215; Cline v. Martin (1916) 94 Ohio St. 420, 115 N. E. 37. Oklahoma: State v. Lawton (1924) 101 Okl. 176, 224 Pac. 347. Pennsylvania: Chalfant v. Edwards (1895) 173 Pa. 246, 33 Atl. 1048. Utah: Merrill v. Spencer (1896) 14 Utah 273, 46 Pac. 1096. Vermont: It is a necessary implication that a town school district is a corporate body separate and distinct from the town, since it has by statute creation by name, in effect perpetuity of existence, unity of person and a governing board elected at the town school district meetings.North Troy School Dist. v. Troy (1907) 80 Vt. 16, 66 Atl. 1033. 63 Anderson v. City of Fargo (1922) 48 N. D. 722, 186 N. W. 378. Legal Position of the Public School Corporation 39 poses only, whether in cities or towns or outside of them; that they are not intended to be city schools in a legal sense, but were such in a most general sense; the name of the city and local agencies being utilized for reasons of convenience and economy. The fact of their locations in cities and towns is immaterial."64 Statutory prescription affecting municipal schools can therefore be changed only by authority of express statute, and not municipal will.65 When a municipality has been empowered to create a school district, that district upon creation becomes separate and distinct from the municipal corporation, and the school funds must be separated from the city funds.66 When a municipal corporation and a school corporation occupy the same territory, care must be exercised to stipulate against which corporation the action is being taken. Thus in an action to force payment on due school bonds, the action should be brought against the school corporation and not against the municipality.67 A civil township has no power to make a contract for the benefit of school property.68 Indiana has both school townships and civil townships occupying the same territory. So if an action is brought against "the township" without specifying "school township," the faction is regarded as being against the civil township.69 The distinction between the two corporations is also brought out in the cases involving the question as to whether the statutory limit of indebtedness has been reached or not. It is held that each corporation may incur an indebtedness up to the limit. The two debts are not totaled.70 Under the Code Public Local Laws, school commissioners were held not to be "city officers" so as to be removable at the pleasure of the mayor of Baltimore.7' So also, the extinction of a municipal corporation by absorption into another city was held 64 Albuquerque Water Supply Co. v. Albuquerque (1898) 9 N. M. 441, 54 Pac. 969. 65 State v. Lawton (1924) 101 Okl. 176, 224 Pac. 347. 66 Ketchikan v. Strong (1918) 6 Alaska 114. 67 Bd. of Ed. v. DeKay (1893) 148 U. S. 591, 13 S. Ct. 706, 37 L. Ed. 573. 68 Jackson Twp. v. Barnes (1876) 55 Ind. 136. 69 Utica Twp. v. Miller (1878) 62 Ind. 230. 70 Bd. of Ed. of Eddy v. Bitting (1899) 9 N. M. 588, 58 Pac. 395; Heinl v. Terre Haute (1903) 161 Ind. 44, 66 N. E. 450. 71 Hooper v. Farnen (1897) 85 Md. 587, 37 Atl. 430. 40 The Legal Authority of the American Public School not to extinguish the school district of such municipal corporation.72 But the schools of a city are sometimes not distinct and separate from the municipalities in which they are located. Sometimes they are a branch or department of the municipal government. When this is the case, even though their functions are still regarded as governmental rather than municipal, the city may exercise certain controls over them. With what might be questioned as a seeming inconsistency, some city schools are spoken of as separate entities, and yet the municipality exercises certain controls. The next section is a survey of this situation as reflected in the courts. ~21. SAME-SCHOOL DEPENDENCE. Schools that are governed directly by the general law are usually independent of municipal control; some schools are directly governed by special charters that have been granted the cities in which they are located. In that case, they are largely dependent on municipal control and are often regarded as a branch or a department of the municipal corporation. Thus the schools of California towns and cities have been divided into two classes on the above basis.73 The first group consists of those districts governed by code, and which are therefore regarded as corporations distinct from the cities. The second group is composed of those districts that are governed by the municipal corporations act of 1883, and cities organized under special charters. It is said concerning these districts that, "....the terms 'school districts and boards of education' are used in a sense quite different from that given to such terms in the Political Code. The school district is no longer a separate corporate body, but is merged in the city; the board of education is but a department of the city government and legislative power including power to impose taxes, is vested in the legislative body of the municipality."74 Before 1917 the Chicago Board of Education was held a department of the city government.75 The city charter of 72 State ex rel. Lowe v. Henderson (1898) 143 Mo. 329, 46 S. W. 1076. 73 23 Cal. Jur. 33. 74 Ibid. 75 People ex rel. McMahon v. Davis (1917) 209 Ill. App. 117. Legal Position of the Public School Corporation 41 Peoria, Illinois passed in 1869 made the board of school inspectors a branch of the city government. It was held in 1905 that later adoption of the general law for the incorporation of cities and villages did not, under the statutes, change the management of the schools.76 The schools of Brunswick, Georgia, were in 1911, declared public schools of the city, although supervised by the county board of education.77 The board of education of Little Falls, New York was thus declared in 1904, not to be a body corporate, but one of the agencies of the municipality, and its acts within the scope of that agency and the charter provisions were declared acts of the city.78 The board of education of New York City, although it appears at the present time to be regarded as a distinct and separate corporation from the city, has in the past been regarded as a branch or department of the city. The relation of the New York Board of Education to the city seems to have undergone a great many changes during the years, although it seems it has usually retained most of the characteristics of a separate corporate entity. In Dannat v. Mayor of New York,79 decided in 1875, the judge rendering the opinion made a review of the history of these changes. By the laws of 1851, it was known as the board of education. "In 1871, it became a department of public instruction under the general city government, and in 1873 was again re-constructed and its original designation restored. Notwithstanding these changes all the powers originally conferred were preserved." Decisions of a later date indicate further changes in status. The decision in People v. Bd. of Ed. of New York,80 decided in 1886, declared that under the laws of 1882, the board had full control of the public schools subject only to limitations of the general statute. The decision of Brown v. City of New York,81 decided in 1900, declared that although the city, aldermen and mayor held the title to all the school property, it was under the care and con76 Phelps v. Bd. of School Inspectors of Peoria (1905) 214 Ill. 30, 73 N. E. 412. 77 Brunswick v. Deaver (1911) 136 Ga. 247, 71 S. E. 242. 78 Ocorr & Ruggs Co. v. Little Falls (1904) 178 N. Y. 622, 70 N. E. 1104. 79 6 Hun. 88. 80 4 N. Y. St. Rep. 747. 81 32 N. Y. Misc. 571, 66 N. Y. S. 382. 42 The Legal Authority of the American Public School trol of the board of education. Gunnison v. Bd. of Ed. of New York, declared the board by Greater New York Charter of 1897, a new and distinct corporation.82 In Titusville Iron Co. v. City of N. y.,83 it was said that no relation of principal and agent existed between the board and the city. But in 1915, it was declared the board of aldermen could fix the salary of a draftsman in the department of education 84; and in 1917 it was declared that the board of aldermen had the absolute right to fix remuneration of janitors for extra work, with which schedule of pay, the board of education was held powerless to interfere.8 So in 1919, it was held the board of estimate and proportionment of the city could pass on and regulate excess estimates of funds declared necessary by the board of education, and also that the city commissioner of accounts might examine as a witness the auditor of the board of education S';; but where in case of such an excess, the board of estimate and board of aldermen concur, there the comptroller has no further power of audit.87 An amendment to the city charter of Stevens Point, Wisconsin in 1873 was held to have destroyed a former board of education and created a new one which became a part of the machinery of the city government.88 Thus also a school district of Kansas City was held "a part of the main corporation," and so a waterworks company which had contracted to furnish water free of charge for "all public buildings and offices of the city" was required to supply school buildings.89 In an early Massachusetts case it was held that school officers did not have such property in the school registers as would give them the right to maintain an action in trespass against the town officers for carrying away the registers; the school officers had 82 (1903) 176 N. Y. 11, 68 N. E. 106. 83 (1912) 207 N. Y. 203, 100 N. E. 806. 84 Pitt v. Bd. of Ed. of New York City, 216 N. Y. 304, 110 N. E. 612. 85 Mahoney v. Bd. of Ed. of New York City, 179 App. Div. 782, 167 N. Y. S. 222. 86 Hirshfield v. Cook, 227 N. Y. 297, 125 N. E. 504. 87 People ex rel. Wells & Newton Co. v. Craig (1921) 232 N. Y. 125, 133 N. E. 419. 88 Stroud v. Stevens Point (1875) 37 Wis. 367. 89 National Waterworks Co. v. Kansas City School Dist. No. 7 (1882) 48 Fed. 523. Legal Position of the Public School Corporation 43 no possession of the property distinct from the possession of the town.90 ~22. SAME-DUAL CONTROL. Cities operating under special laws or city charters may be granted certain control over the city schools. The extent of this control varies as to the terms of the special laws or charters, and also as to the general state statutes. Where the terms of the charters or special laws conflict with the general state laws, the latter take precedence. Thus under the general law the school districts of California were empowered to determine the amount of money required for school purposes. By its charter the city of San Francisco was also empowered to determine this amount. It was held that the general law prevailed over the conflicting provision of the charter.91 But it was also held that the charters might provide for matters not enumerated in the statutes, or not in conflict with the terms of the latter.92 It is seen, then, that many school systems situated in cities or other municipal corporations are subject to a dual controlthe municipality on the one side and the state through its agent, the school board, on the other. It has often been contended that since education is a state function, the school board as the agent of the state should have complete control. On the other side, it is contended that since the schools are primarily city schools their management should remain subject to the dictates of the municipality. The courts have been called upon to draw the line between the two. Frequently the municipal control takes the form of appointment of the members of the board of education. Although the board of education of Chicago is acknowledged to be a state agency, its members are appointed by the mayor and city council.93 The council also controls the appointments of the board. Fiscal control by the municipal officers is also frequent. Although a town manager was held not to be empowered to 90 Perkins v. Weston (1849) 3 Cush. (Mass.) 549. 91Esberg v. Badaracco (1927) 202 Cal. 110, 259 Pac. 730. 92 See also: Roberts v. Clay City (1897) 102 Ky. 88, 42 S. W. 909; Phelps v. Bd. of School Inspectors of Peoria (1905) 214 Ill. 30, 73 N. E. 412; McKenzie v. San Francisco Bd. of Ed. (1905) 1 Cal. App. 406, 82 Pac. 392. 93 People v. Coffin; People v. Francis; People v. Miller (1918) 120 N. E. 807, affirming judgment 209 Ill. App. 136. 44 The Legal Authority of the American Public School purchase the school supplies, nor to hire janitors for the school buildings, it was held that such town manager had exclusive care of the school buildings and exclusive right to determine what repairs were to be made. But although it was held the orders on the school fund to pay for the repairs must be drawn by the school directors, the manager was empowered to do all the financial accounting of the schools, and therefore entitled to the necessary books, receipts, and other papers being held by the school directors, yet in this same case the school district was held not a department of the town, but a separate corporate entity.9 The Buffalo, New York board of education was held empowered to determine the various items of expenditure, but the city council was held to have the right to reduce the total sum. So also, while a commissioner of finance was required by a statute to countersign the warrants drawn by the board, he could not refuse to countersign a warrant for the salary of a superintendent, so long as there were funds with which to pay it. his even though the city council had attempted to reduce the salary of the superintendent.95 The determination as to whether an election should be held to decide whether funds should be raised to build a new building was in Ocorr & Rugg Co. v. City of Little Falls, held exclusively in the hands of the common council, and for determination by the board of education.96 While the school board of the city of Detroit, Michigan has been held a distinct corporation from the municipal corporation,97 and the board of education could restrain the city from encroaching on its property,98 and school bonds and library bonds were not part of the indebtedness of the city;99 yet, the city council could control the extent of the expenditures of the board of education,100 and the city authorities even held authorized to fix the compensation of the officers and employees of the board of educa94 Farmer v. Haley (1926) Vt. -, 135 Atl. 12. 95 Fuhrman v. Graves (1922) 235 N. Y. 77, 138 N. E. 743. 96 (1904) 70 N. E. 1104, 178 N. Y. 622. 97 Bd. of Ed. v. Detroit (1875) 30 Mich. 505; Ferris v. Bd. of Ed. of Detroit (1899) 122 Mich. 315, 81 N. W. 98; Kuhn v. Thompson (1912) 168 Mich. 511, 134 N. W. 722. 98 Bd. of Ed. v. Detroit (1875) supra. 99 Atty-Gen. v. Thompson (1912) 168 Mich. 511, 134 N. W. 722. 100 Bd. of Ed. of Detroit v. Common Council of Detroit (1890) 80 Mich. 548, 45 N. W. 585. Legal Position of the Public School Corporation 45 tion.101 The title to city school property is often in the city and not in the board of education.102 But the department of supplies of Philadelphia was held not empowered to purchase the supplies for the board of education,103 nor the common council of Fond du Lac, Wisconsin empowered to control the selection of text books for the city schools.104 But the city council of Chicago controls the expenditures of the board of education and was held empowered to examine the original records and receipts of such expenditures, and its motive in so doing was held immaterial.105 But the city council of Binghampton, N. Y., was held unauthorized to investigate the actions of members of the board of education, although the mayor had power of removal.106 It seems that sometimes the board of education has had to act under an almost complete and absolute authority of the city officials.107 Thus we see that sometimes the school corporation finds itself subject to a system of dual control-on the one hand, the state; on the other, the city. ~23. CHAPTER SUMMARY. The Ordinance of 1787, made a provision in its compact that the Northwest Territory was to encourage schools and education. All state constitutions place the same duty on their several legislatures. This makes public education a state function. In the execution of this duty, the state legislatures have created, or provided for the creation of school districts and boards to perform this state function. The school corporation is thus made an agent of the state. Being an agent, the legislature of the state may exercise a full and complete control over it-granting and limiting its pow101 Burton v. Detroit (1916) 190 Mich. 195, 156 N. W. 453. See also: Mahoney v. Bd. of Ed. of New York City (1917) 179 App. Div. 782, 167 N. Y. S. 222-New York board of aldermen have absolute right to fix janitor pay for extra time, excluding such power from board of education. 102 National Waterworks Co. v. Kansas City School Dist. No. 7 (1882) 48 Fed. 523; Chicago v. Bd. of Ed. of Chicago (1928) 246 Ill. App. 405. 103 Bd. of Ed. v. Ransley (1904) 209 Pa. 51, 58 Atl. 122. 104 Madden v. Kinney (1903) 116 Wis. 561, 93 N. W. 535. 105 People v. Bd. of Ed. of Chicago (1916) 198 Ill. App. 195, appeal dismissed 113 N. E. 965, 275 Ill. 195. 106 Miller v. Tayntor (1915) 170 App. Div. 126, 155 N. Y. S. 746. 107 Weatherly v. Chattanooga (1898) - Tenn. -, 48 S. W. 136; Hassett v. Carroll (1911) 85 Conn. 23, 81 Atl. 1013, Ann. Cas. 1913A, 333. 46 The Legal Authority of the American Public School ers, dividing, apportioning, or taking away entirely the territory of the district, and even dictating its liabilities. Although city school districts and boards are usually regarded as independent of the municipalities in which they are located, some city school corporations are dependent on the municipality and subject to various degrees of control by the municipal authorities. Sometimes the city school system is a branch or department of the city government, and sometimes, even though regarded as a separate entity, the municipality still exercises various controls over it. Sometimes, therefore, the city school district or board is subject to a system of dual control-by the state, as an agent; and by the city authorities, as a part of the municipal public school system. CHAPTER III The Work of the School Corporation Analysis of Chapter SECTION PAGE Scope of chapter -.......-......-.................. 24 47 Powers and duties of the school board In general.......................................................... 25 47 Effect of quasi corporate character.............................. 26 49 Summary..-............-.......... —. 27 51 Detailed statutory powers and duties.-..-..............28 52 Judicial construction.-.....................- 29 52 Powers and duties of board members and other school. officers............................... 30 56 Resolutions In general...................-............ 31 58 General jurisdiction.-...................-.....-...... 32 59 Control of pupils.......-......-........... —. 33 60 Punishment of pupils......................-..... 34 64 Procedure in exercise of authority.-.. - -........... -. 35 64 Control by courts.... —................-....-. 36 67 Chapter summary.......................-....... 37 69 ~24. SCOPE OF CHAPTER. We have seen that the school district and board are quasi corporations, created as branches of the state government to act as the state's agents in the performance of a governmental function. Here we are to make a short study of the powers possessed by the school corporation and its officers, and the manner in which these powers are exercised. ~25. POWERS AND DUTIES OF THE SCHOOL BOARD-IN GENERAL. Preceding chapters have shown that the school district is a corporate body. It has been endowed with certain powers that made it so. Without these powers it would in no sense be a corporation. It is therefore that the state statutes, whether they expressly declare the school district or board to be a body politic and corporate, or not, usually make a general statement of the primary corporate powers possessed by these bodies.' 1 More or less complete statements of these general corporate powers 48 The Legal Authority of the American Public School The statements are usually very brief and in concise terms. The Montana statute is typical: "Every school district, constituted and formed as provided in this title shall be, and is hereby, declared to be a body corporate and under its own proper name or number as such corporate body may sue and be sued, contract and be contracted with, and may acquire purchase and hold and use personal or real property for school purposes mentioned in this title, and sell and dispose of the same."2 In some statutes a more extended statement appears. The Michigan statute is typical: "The said board of education shall be a body corporate under the name and style of the board of education of the city of. ---, and under that name may sue and be sued, and may take, hold, sell and convey real and personal property, including property received by gift, devise, or bequest, as the interest of said schools and the property and welfare of said school district may require. The said board of education may take and hold real and personal property, for the use of the public schools within and without its corporate limits and may sell and convey the same. The property of said board of education shall be exempt from taxation for all purposes except for special improvements. The board of education chosen pursuant to this act shall be the successor of any school corporation or corporations existing within the limits of such city or cities and shall be liable to pay the indebtedness and obligations of the school corporations of which it is the successor, in the manner and to the extent provided in this act. Said board of education shall have power to purchase all property, erect and maintain all buildings, purchase all personal property, employ and pay all persons, and do all other things in its judgment necessary for the proper establishment, maintenance, management, and carrying on of the public schools of the city and for the protection of other property of the district, and it shall have authority to adopt by-laws, rules and are found in the school laws of Arizona, Arkansas, Connecticut, Florida, Idaho, Illinois, Indiana, Kansas, Kentucky, Maryland, Michigan, Missouri, Montana, Nebraska, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Texas, Utah, Virginia, West Virginia, and Wyoming. Citations appended in note 43 p. 9 supra. 2Montana School Laws (1927) Chap. 79, ~1022, p. 31; Rev. Code (1921) ~1022. The Work of the School Corporation 49 regulations for its own government and for the control and management of all schools, school property, and pupils. It shall not have power to raise money, borrow money, or incur indebtedness except in the manner herein specified."3 These general powers are necessary adjuncts to the corporate character of the district and board.4 Thus the capability of suing and being sued may be inferred from other definitely stated powers and privileges, where the power of suit is not definitely stated. Thus it was said in the Connecticut case of McLoud v. Selby, determined in 1835: "Is a school district liable to be sued? Upon this point we entertain no doubt. That these corporations are capable of suing, and being sued, would seem to be strongly inferable, from the powers and privileges conferred upon them by statute. They have power to erect school houses, to purchase lands on which to erect them, to levy and collect taxes, to appoint treasurers and collectors, and to do all necessary acts for the purpose of sustaining and regulating schools. They may, therefore, possess property, and may make contracts; and may not these contracts be enforced?"" So, also, a school corporation may take land donated to it, though there is no express statute granting the power,6 and likewise take land by will.7 But school districts must be duly constituted before they have power to act. Thus a vote to raise money in a district whose limits have not yet been defined is void.8 ~26. SAME-EFFECT OF QUASI CORPORATE CHARACTER. But a school district or board is not a complete corporation. It has been shown to be a quasi corporation only. The result of this is that it is limited in its powers, possessing only those 3Michigan General School Laws (1927) Chap. 7, ~157; Comp. Laws 1915, ~12. 4 "The board... possesses the powers and privileges of a corporation, and is, therefore, capable of suing and being sued."-Dannat v. Mayor of New York (1875) 6 Hun (N. Y.) 88. "They [school directors] are a uasi corporation; and, as such, may sue and be sued."-Barnet v. School Directors (1843) 6 Watts and S. (Pa.) 46. 510 Conn. 390, 27 Am. Dec. 689. 6 Carpenteria School Dist. v. Heath (1880) 56 Cal. 478. 7 Estate of Bulmer (1881) 59 Cal. 131. 8 Johnson v. Dole (1828) 4 N. H. 478. 50 The Legal Authority of the American Public School expressly granted by statute and those arising by necessary implication from the powers that are expressly given.9 The preceding chapter showed the almost unbounded control the legislatiure may exert over the school corporation. This is evinced again here. The powers of the school board are completely dependent upon legislative determination. Thus the Supreme Court of the United States has said concerning the relation between municipalities and the state, and which applies here, that, "They may be created, their powers may be restricted or enlarged, or altogether withdrawn, at the will of the Legislature; the authority of the Legislature, when restricting or withdrawing such powers, being subject only to 9Arkansas: First Nat. Bank v. Whisenhunt (1910) 94 Ark. 583, 127 S. W. 968. A school district has those incidental powers necessary to make the expressly granted powers effective and available.-Arkansas Nat. Bank v. School Dist. (1922) 152 Ark. 507, 238 S. W. 630. California: Pasadena School Dist. v. Pasadena (1913) 166 Cal. 7, 134 Pac. 985, 47 L. R. A. (N. S.) 892. Illinois: Peers v. School Dist. No. 3 (1874) 72 Ill. 508; People v. Dupuyt (1874) 71 Ill. 651; Directors v. Fogleman (1875) 76 Ill. 189; Adams v. Brenan (1898) 177 Ill. 194, 52 N. E. 314, 42 L. R. A. 718; People v. Bd. of Ed. of Paris School Dist. (1912) 255 Ill. 568, 99 N. E. 659; Stroh v. Casner (1916) 201 Ill. App. 281. Missouri: Wright v. Bd. of Ed. (1922) 295 Mo. 466, 246 S. W. 43. Nevada: State v. McBride (1909) 31 Nev. 57, 99 Pac. 705. New Hampshire: School districts "have no powers derived from usage;... They have the powers expressly granted them to perform their duties, and no more."-Harris v. School Dist. No. 10 (1853) 28 N. H. 58. New York: Rapelye v. Van Sickler (1845) 1 Edm. Sel. Cas. 175. North Dakota: Pronovost v. Brunette (1917) 36 N. D. 288, 162 N. W. 300; Rhea v. Bd. of Ed. of Devils Lake (1919) 41 N. D. 449, 171 N. W. 103. "It [the school district] is a quasi municipal corporation, and possesses only such powers, as have been conferred upon it by the legislature."-Minot Special School Dist. v. Olsness (1926) 53 N. D. 683, 208 N. W. 968, 45 A. L. R. 1337. Gillespie v. School Dist. No. 8 (1927) 56 N. D. 194, 216 N. W. 564. Oregon: Baxter v. Davis (1910) 58 Ore. 109, 112 Pac. 410, rehearing denied 58 Ore. 109, 113 Pac. 438; Crawford v. Dist. School Bd. (1913) 69 Ore. 388, 137 Pac. 217, 50 L. R. A. (N. S.) 147. Pennsylvania: Mulligan v. School Dist. (1913) 241 Pa. 204, 88 Atl. 362. South Dakota: ".... a board of education has only such powers as are expressly given to it or as a result by fair implication from the powers expressly granted... "-Dahl v. Indep. School Dist. No. 2 (1922) 45 S. D. 366, 187 N. W. 638. Texas: Royse Indep. School Dist. v. Reinhart (1913) (Tex. Civ. App.), 159 S. W. 1010. West Virginia: Honaker v. Bd. of Ed. (1896) 42 W. Va. 170, 24 S. E. 544, 132 L. R. A. 413. Wisconsin: State v. Milquet (1923) 180 Wis. 109, 192 N. W. 392. A high school district has only expressed powers or those necessarily implied.-Iverson v. Union Free H. S. Dist. (1925) 186 Wis. 342, 202 N. W. 788. The Work of the School Corporation 51 the fundamental condition that the collective and individual rights of the people of the municipality shall not thereby be destroyed."10 Therefore statutes granting power receive a strict construction, and the language will not be extended by implication; doubtful claims of power being resolved against them.1l "The education of youth is the only purpose of the corporate school district. Its powers are restricted to the execution of this purpose."12 ~27. SAME-SUMMARY. We may say, then, in summary of the foregoing, that the general corporate powers of the typical school district or board, conferred by statute, as adjunctive to its corporate character, are the following: a. To possess a corporate name. b. To acquire and hold real and personal property. c. To convey such property when necessary or expedient to the purpose of the corporation. d. To contract and be contracted with. e. To sue and be sued in its corporate name. f. To receive grants, gifts, and bequests. g. To make by-laws, rules and regulations. h. To exercise the right of eminent domain. i. In general to exercise those corporate powers usually possessed by public corporations of this rank, and to do those things necessary to the attainment of those ends for which the corporation was organized. But since the school district and board are quasi corporations only, these general grants of corporate power will be strictly construed to give power to effect only the purpose for which the corporation was created, and doubtful claims of power will be resolved against such claims. The power of levying taxes is one possessed by most school corporations, but it does not properly belong in the above enumeration, since it is not included in the statutory grants of general corporate power, but is a special power, specifically and separately granted. 10 Atkins v. Kansas (1903) 191 U. S. 207, 24 S. Ct. 124, 48 L. Ed. 148. 1 Andrew v. Stuart Savings Bank (1927) 204 Iowa 570, 215 N. W. 807; Gilberton School Dist. v. Norris (1927) 290 Pa. 7, 130 Atl. 864. 12 Lane v. Dist. Twp. of Woodbury (1882) 58 Iowa 462, 12 N. W. 478. 52 The Legal Authority of the American Public School ~28. SAME-DETAILED STATUTORY POWERS AND DUTIES. In addition to the brief statements of the general corporate powers possessed by the school corporation, the statutes enumerate in detail many specific powers and duties. A rather extensive study have been made of these enumerations, particularly relating to city school boards, by Dr. G. C. Morehart.13 He examined the statutes in point for the years 1901, 1911 and 1921. A table headed "Powers and Duties of City School Boards" was compiled, and contains a list of 204 separate items.14 Without attempting to make an enumeration, let it merely be pointed out that although the school district and board as quasi corporations are limited in their powers, yet when details are considered there are in reality a great number and variety of duties and powers. ~29. SAME-JUDICIAL CONSTRUCTION. It has been said that a school district or board may do those things necessary to the attainment of the purposes of their establishment; that they may exercise those powers necessary to the proper execution of the general powers granted, and duties imposed, and that they possess those powers arising from necessary implication. The extent of the powers given by such grants, and the proper construction of specific provisions are determined by judicial decision. We have seen that the school corporation possesses the general power to acquire and hold personal and real property. This involves also the care, maintenance and repair of school buildings. But to "repair" may not include to remodel and improve.15 A school district has been held unable to appropriate a part of a public park for the purpose of erecting a school building thereon, even though such erection would be of public benefit.16 When selling school property, the procedure required by statute must be followed strictly-and when it is required, the sale must be by public auction, and to the highest bidder, and after due notice of the terms, place and time of the sale.17 13 Morehart, G. C. The Legal Status of City School Boards. 14 Ibid., p. 45-48. 1515 Cyc. 944. 16 Melin v. School Dist. No. 76 (1925) 312 Ill. 376, 144 N. E. 13. 7 Dooley v. Bd. of Ed. (1917) 80 W. Va. 648, 93 S. E. 766. The Work of the School Corporation 53 Likewise where there has been fraud practiced between a selling committee of a school district and purchasers of a school house, there the sale may be rescinded, but the district must offer to restore to the purchaser what was received from them.18 School buildings may be erected, but it has been held funds could not be expended to complete a building on property of another district under an agreement whereby two districts were to enjoy the building.19 By fair implication such articles may be purchased "which are clearly necessary that a school may be carried on and taught,"-such as school desks.20 We have seen that a school corporation may contract and be contracted with. But a "lobbying" contract may not be entered into lawfully,21 nor a contract to change the school fund into a simple bank deposit for the purpose of releasing the principal and sureties on the treasurer's bond,22 nor any contract not dealing directly with the single purpose of a schooleducation.23 A contract to teach may not be validly made with one who has no license to teach.24 When a contract is made pursuant to authority given by special vote of the district, the amount to be spent must not exceed the amount authorized.25 A school corporation, we have seen, has the general power to sue and be sued. It has therefore the power to defend suits against itself. But a school district may not use school funds to defend a suit brought against one of the directors individually.26 A school district has been held empowered to bring an action in ejectment to recover possession of a lot.27 Thus also it may sue to recover school money from a defaulting officer,28 or against a delinquent collector of school taxes.29 The action in the case of defaulting school officers, it has been held, may 18 School Dist. No. 6 v. Aetna Ins. Co. (1865) 54 Me. 505. 19 Olmstead v. Carter (1921) 34 Idaho 276, 200 Pac. 134. 20 A. H. Andrews Co. v. Delight Special School Dist. (1900) 95 Ark. 26, 128 S. W. 361. 21 Graves v. Houtchens v. Diamond Hill Dist. (Tex.,1922) 243 S. W. 638. 22 Thompson v. Elmo Indep. School Dist. (Tex., 1925) 269 S. W. 868. 23 Dahl v. Indep. Dist. No. 2 (1922) 45 S. D. 366, 187 N. W. 638. 24 Butler v. Haines (1881) 79 Ind. 575. 25 Wilson v. School Dist. (1855) 32 N. H. 118. 26 Hotchkiss v. Plunkett (1891) 60 Conn. 230, 22 Atl. 535. 27 Bd. of Ed. of San Francisco v. Donahue (1878) 53 Cal. 190. 28 School Dist. No. 45 v. Correll (1926) 220 Mo. App. 322, 286 S. W. 136. 29 Barnet v. School Directors (1843) 6 Watts & S. (Pa.) 46. 54 The Legal Authority of the American Public School either be brought on the bond or in a quasi contractual action.30 The school corporation is entitled to the same protection for its property that other corporations demand for their property.31 Thus the school corporation may sue a trespasser on school property for damages.32 But if the actual or constructive possession of the property is not in the school corporation (but, for example, in the city) then it has been held the action would not lie.33 Under certain circumstances the school corporation may invoke the extra-legal remedy of injunction 34 or the special remedy of mandamus.35 Since the school corporation may maintain and defend lawsuits, it is natural that it may employ counsel,36 but may not when one has already been provided by law.37 School corporations may borrow money and issue bonds; and have been held empowered to do so independently of the city in which they are located, and regardless of the fact that the city has already issued municipal bonds for school purposes.38 It has been held that a school board might borrow money in anticipation of incoming taxes, though length of time ahead may be limited.39 Promissory notes given for debts that the school trustees are authorized to contract, are valid.40 Such notes have been validly issued to teachers in salary payment.41 30 Bd. of Ed. v. Milligan (1894) 51 Ohio St. 115, 42 N. E. 255. 31 Bd. of Ed. v. Detroit (1875) 30 Mich. 505. 32Alderman v. Dist. No. 5 (1878) 91 Ill. 179; Morris v. School Dist. No. 86 (1896) 63 Ark. 149, 37 S. W. 569. 33 Perkins v. Weston (1849) 3 Gush. (Mass.) 549. 34 School Dist. No. 74 v. Long (1894) 2 Okl. 460, 37 Pac. 601. An order issued by a court of equity restraining the performance of an act deemed unjust or inequitable in regard to the rights of another party. Cyc. Law Dict. 35 Rural High School Dist. v. Davis (1915) 96 Kan. 647, 152 Pac. 666. This is a court order usually issuing from the highest court of the state, demanding that a person do some particular thing appertaining to their office or duty.-Cyc. Law Dict. 36 Denniston v. Gaffstown (1845) 17 N. H. 492; Fleischmann v. Graves (1923) 235 N. Y. 84, 138 N. E. 745. 7 Denman v. Webster (1903) 139 Cal. 452, 73 Pac. 139. 38 Los Angeles City School Dist. v. Longden (1905) 148 Cal. 380, 83 Pac. 246. 9 Bd. of Ed. of Newport v. Scott (1920) 189 Ky. 225, 224 S. W. 680. 40 School Dist. No. 7 v. Thompson (1861) 5 Minn. 280 (Gil. 221). 41 Horton v. Garrison (1856) 23 Barb. (N. Y.) 176. The Work of the School Corporation 55 The school corporation may, of course, control its employees. But it has been held that it may not discipline them by the imposition of fines.42 It has been held that a board of education cannot stipulate in its contracts for improvements that only union labor shall be employed by the contractor.43 Since teachers are servants of their employers, and not public officers, the school board may discharge them at any time and with or without cause (unless statute stipulates causes of dismissal), but the teachers thus dismissed have an action for the breach of their contracts.44 But where causes for dismissal are stipulated by statute, dismissal may be for no others,45 and only after a fair hearing.46 Control of employees does not extend so far that a school board may determine where a teacher shall room and board.47 The school boards exercise a great number of different powers in connection with the management of the school work proper. Bare mention of a few decisions here must suffice. When high schools were first being established, there was some question of the boards' right so to do, but it was of course settled that such a right existed.48 The branches of study or the curriculum may be determined by the board, but it has been held that it cannot stipulate just which studies must be pursued by each pupil.49 It has also been held that tuition fees cannot be constitutionally required of resident students.50 Boards have been held empowered to dismiss students for religious instruction.51 So also it has been held within the power of a school board to allow the pupils to be used for practice teaching purposes.52 The policies formulated by the 42 People v. Bd. of Ed. of N. Y. City (1894) 143 N. Y. 62, 37 N. E. 637; Farrell v. Bd. of Ed. of N. Y. City (1910) 67 Misc. Rep. 187, 122 N. Y. S. 289. 43 Adams v. Brenan (1898) 177 Ill. 194, 52 N. E. 314. 44Kelderhouse v. Brown (1886) 17 Abb. N. C. 401; Swartwood v. Walbridge (1890) 57 Hun. 33, 10 N. Y. S. 862. 45 Courtright v. Consol. Dist. (1927) 203 Iowa 26, 212 N. W. 368. 46 Horne v. School Dist. (1910) 75 N. H. 411, 75 Atl. 431. 47Ibid. 48 Topeka Bd. of Ed. v. Welch (1893) 51 Kan. 792, 33 Pac. 654. 49 Trustees v. People (1877) 87 Ill. 303, 29 Am. Rep. 55. 50 Lawrence Bd. of Ed. v. Dick (1904) 70 Kan. 434, 78 Pac. 812. 51 People ex rel. Lewis v. Graves (1926) 127 Misc. Rep. 135, 215 N. Y. S. 632. 52 Spedden v. Bd. of Ed. of Fairmont (1914) 74 W. Va. 181, 81 S. E. 724, 52 L. R. A. (N. S.) 163. 56 The Legal Authority of the American Public School board are expressed, and the control of the school problems proper is exercised through the rules and regulations the board is empowered to pass. A general discussion of such rules and regulations is given in a following section on resolutions.53 Although the decisions disclose a great variety of miscellaneous grants and prohibitions, no more can be done here than to merely mention a few to illustrate the variety. Thus free transportation may not be provided to children attending private schools.54 When a board of education has provided a school building on the mainland, it is not required to build another on an island off the coast, for pupils there, nor to provide transportation for such pupils.55 A school corporation cannot become a stockholder in a railway company.53 A school district does not lose it rights when its name is changed.57 A board of education cannot delegate to others its discretionary powers.58 A board may provide for the installation of a banking system in the schools as a means of teaching thrift.59 A board of trustees has authority to arrange for field day exercises by their schools.60 Numerous cases on this subject may be found in the Century and Decennial Digests.61 ~30. POWERS AND DUTIES OF BOARD MEMBERS AND OTHER SCHOOL OFFICERS. The previous section considered the powers and duties of the school corporation; this is to discuss briefly the same topic in relation to the individual and personal powers and duties of the members and officers of the corporation. School directors, trustees and school treasurers are public officers.62 Therefore law applicable to public officers generally is applicable to these school officers. It has been held that, although school officers are public officers and are acting under 53 See p. 58 et seq. 54 State v. Milquet (1923) 180 Wis. 109, 192 N. W. 312. 55 Newcomb v. Rockport (1903) 183 Mass. 74, 66 N. E. 587. 56 People v. Dupuyt (1874) 71 Ill. 651. 57 Janesville School Dist. No. 3 v. Macloon (1855) 4 Wis. 98. 58 Stroh v. Casner (1916) 201 Ill. App. 281. 59 Security Nat. Bank v. Bagley (1926) 202 Iowa 701, 210 N. W. 947. 60 Adams v. Schneider (1919) 71 Ind. App. 249, 124 N. E. 718. 61 Of the National Reporter System, St. Paul: West Pub. Co. 62 Mechem, Public Officers, ~55. The Work of the School Corporation 57 state law, they are not "state officers."63 Therefore their authority extends only to the boundaries of the district in which they are elected. The duties that these officers perform in an official capacity must be exclusively for the benefit of the corporation. Board members are not allowed to contract with the corporation for their own benefit.64 Neither are they allowed to make valid contracts between each other in such a fashion as to bind the district by their mutual agreement.65 This arises from a policy based on the general law of agency. Mechem, the great authority on Agency, said: "It is a rule of universal application in the law governing the dealings between principals and agents, both public and private, that the agent shall not be permitted, in the course of the execution of his agency, to put himself in such a position that his own interests shall be antagonistic to those of his principal, to whom belong all the profits, increase and advantages which may result from its execution. This duty cannot be performed if the agent is to be permitted to take advantage of his position and its opportunities to make gain for himself. Public policy, therefore, demands and the law declares, that, except with the full knowledge and consent of his principal, the agent shall not in the execution of his trust deal with or for himself, whether directly or indirectly."66 It is in conformity with this policy that board members are, for example, prohibited from acting as book agents.67 Where by statute the president of a school board was required to "appear in behalf of his district in all actions brought by or against the same" it was held that the president was not thereby authorized to bring suits on his own motion.68 A school board clerk is obliged to record the proceedings of school board meetings whenever the board so directs. He cannot use his discretion in the matter, his duties being purely ministerial.69 63 Guyer v. Stutt (1920) 68 Colo. 422, 191 Pac. 120. 64School Dist. No. 98 v. Pomponi (1926) 79 Colo. 658, 247 Pac. 1056. 66 Currie v. School Dist. 26 (1886) 35 Minn. 163. 66 Mechem, Public Officers, ~839. 67 State v. Wick (1906) 130 Iowa 31, 106 N. W. 268. 68 Cedar Twp. Indep. School Dist. No. 6 v. Wirtner (1892) 85 Iowa 387, 52 N. W. 243. 69 Trustees of Schools v. Shepherd (1891) 139 Ill. 114, 28 N. E. 1073. 58 The Legal Authority of the American Public School The treasurer must pay valid claims out of the appropriate funds. Thus it has been held that a school treasurer had no authority to pay a judgment against the trustees of a district out of funds applicable only to other specific purposes.70 It is a duty of the treasurer to obtain and care for the district funds. Thus where money was due the school funds from a city, and a city gave warrants on its treasurer, it was said to be the right of the treasurer to sue to recover the amount.71 But it has also been held that the treasurer of a school district must bring an action to obtain school money only in the name of the district, and not in his own name.72 Where under a statute a school treasurer was allowed no pay for the performance of any duty, above that fixed by the board of trustees before his appointment, the allowance of a commission for the sale of certain bonds, was held illegal. Here, as with the corporation itself, statutory provisions together with their judicial construction, results in a mass too complex to be considered at length, so again the reader must be referred to the digests.73 ~31. RESOLUTIONS - IN GENERAL. It has been pointed out that some of the grants of power to the school board are couched in very general terms. Such provisions vest the school board with, and require the exercise of, wide administrative and quasi-judicial discretion. The breadth of this discretion is clearly seen in the case of provisions like the following one from the Alabama, School Code: "The City Board of Education is hereby vested with all the powers necessary or proper for the administration and management of the free public schools within such City... But the exercise of discretion is also necessary in scores of other duties. Statutes requiring the board to provide safe transportation, to select text-books, to determine the length of school terms, to make rules and regulations, etc., all require exercise of discretion. 7 School Dist. No. 31 v. Roach (1890) 43 Minn. 495, 45 N. W. 1097. 71 Lovingston v. Bd. of Trustees (1881) 99 Ill. 564. 72 Donnelly v. Duras (1881) 11 Neb. 283, 9 N. W. 45. 73 Of the National Reporter System, St. Paul: West Pub. Co. 74Alabama School Code (1927) Art. IX, ~198. The Work of the School Corporation 59 All these determinations or decisions take the form of resolutions, and are included here under that denomination.7 In all these decisions it is necessary that the determination be not arbitrary or capricious, nor made maliciously. In the case of rules and regulations, the evidence of sound discretion is the reasonableness of the rule or regulation.76 When a decision is questioned, it is presumed that the board has acted in good faith until contrary evidence is shown.77 ~32. SAME-GENERAL JURISDICTION. Broad as some of these grants of power to pass resolutions are, the courts have placed a limit thereon. Thus where a Michigan statute78 provided that the boards of education should have power to make by-laws and ordinances relative to regulation of schools, books to be used therein, and "anything whatever that may advance the interests of education, the prosperity of the free schools, and the welfare of the public concerning the same," it was held that the board could not buy text-books to sell at cost.79 Judge Ostrander commented as follows: "We are impressed, however, that the grant we are considering was not intended to empower the board of education of the City of Detroit to do everything whatever that may advance the interests of education in the City of Detroit, but only such things as it may do without changing its character as a board of education, without, for example, assuming or taking on the character of a commercial or trading corporation. Otherwise the activities of the board may occupy the almost limitless field of ascertaining and correcting influences 75 It is sometimes held that rules and ordinances are not resolutions, in that the latter apply only to a specific question in hand.-Cyc. Law Diet. (Resolutions). 76 Fertich v. Michener (1887) 111 Ind. 472, 60 Am. Rep. 709; Valentine v. School Dist of Casey (1921) 191 Iowa 1100, 183 N. W. 434; Barnard v. Inhabitants of Shelburne (1913) 216 Mass. 19, 102 N. E. 1095, Ann. Cas. 1915A, 751, and note. The control of city schools, including the selection of sites and distribution of pupils, is given to the board of education, and this discretion will not be interfered with, its decisions being final, unless the action is capricious or arbitrary.-Williams v. Bd. of Ed. (1910) 81 Kan. 593, 106 Pac. 36. 77 Morse v. Ashley (1906) 193 Mass. 294, 79 N. E. 481. For further discussion of this point see: Control by Courts, p. 67 infra. 78 Acts 1869, No. 233 ~5. 79 Kuhn v. Bd. of Ed. (1913) 175 Mich. 438, 141 N. W. 574. 60 The Legal Authority of the American Public School and conditions which retard the interests of education. The reasons which are urged in support of greater powers than are here indicated should be urged upon the legislature." A general conclusion, then, is that even though the legislature may grant powers apparently almost limitless, the courts will define boundaries to that jurisdiction. It is in the matter of rules and regulations affecting the government of the pupils that most of these questions arise. ~33. SAME-CONTROL OF PUPILS. The trust of the management and conduct of the schools implies the making of rules and regulations for the control and discipline of the pupils. Pupils by entering school impliedly agree to submit to reasonable control. This applies also to pupils over twenty-one years of age.80 Chief Justice Conner of Texas has said: "Generally speaking, it must be said that the superintendent, principal, and board of trustees of a public free school to a limited extent at least, stand, as to pupils attending the school in loco parentis,81 and they may exercise such powers of control, restraint, and correction over such pupils as may be reasonably necessary to enable the teachers to perfom their duties and to effect the general purposes of education. Reasonable rules, to enforce discipline, to preserve order, both in the school building and upon the grounds, to protect the morals, the health, and the safety of pupils, and to do and require pupils to do, whatever is reasonably necessary to preserve and conserve all of these interests, may be made and enforced. But any such rule or regulation, whether adopted by the teachers or by the trustees, or by the concurrence of both teachers and trustees, must be reasonable."82 The rule or regulation must be reasonable in the light of the existing circumstances. Regard must be had to the age, size and health of the pupils.83 Unreasonable rules evidence abuse of discretion and give rise to inference of malice.84 The rule must be fairly calculated to insure good government, and must so Stevens v. Fassett (1847) 27 Me. (14 Shep.) 266. 81 In the place of the parent. 82 Hailey v. Brooks (Tex. 1916) 191 S. W. 781. 83 Fertich v. Michener (1887) 111 Ind. 472, 60 Am. Rep. 709. 84 Englehart v. Serena (1927)........ Mo........, 300 S. W. 268. The Work of the School Corporation 61 serve a justifiable purpose. Thus a rule that each child entering the schoolhouse must bring in a stick of wood is unreasonable, because not "needful" to the government, good order and efficiency of the school.85 Where the subjects to be studied are not determined by statute, the school board may decide on what subjects shall be taught. Controversy has arisen, however, as to whether pupils may be required to pursue certain studies. It is usually held, that the parents of the pupils may make a reasonable selection. But the courts seem to have a rather broad conception of what is a reasonable selection. Parental wishes that their children should not study bookkeeping,86 rhetoric,87 grammar,88 cooking,89 music,90 and dancing91 have all been held reasonable and were upheld. Only two contra cases were met with, which in final analysis really rest on different considerations.92 The reason usually assigned for allowing the selection is that the parental authority over the children is greater than that of the school officials. In each of these cases the pupil had been expelled for refusing to comply with the rules. In those cases in which the parents' selection was held reasonable, the expulsion was termed wrongful, and the pupils were reinstated through mandamus. In the two instances in which the school authorities were upheld, the expulsion was confirmed. 85 State v. Bd. of Ed. of Fond du Lac (1885) 63 Wis. 234, 23 N. W. 102. 86 Rulison v. Post (1875) 79 111. 567. 87 State ex ret. Sheibley v. School Dist. No. 1 (1891) 31 Neb. 552, 48 N. W. 393. 88 School Trustees v. People (1877) 87 Ill. 303, 29 Am. Rep. 55. 89 State v. Ferguson (1914) 95 Neb. 63, 144 N. W. 1039, 50 L. R. A. (N. S.) 266, and note. 90 School Bd. Dist. v. Thompson (1909) 24 Okl. 1, 103 Pac. 578, 24 L. R. A. (N. S.) 221. 91 Hardwick v. Bd. of Trustees (1921) 54 Cal. App. 696, 205 Pac. 49. 92 State ex ret. Andrew v. Webber (1885) 108 Ind. 31, 58 Am. Rep. 30.-Really held against parents selection because no reason given for the selection. Samuel Benedict Memorial School v. Bradford (1900) 111 Ga. 801, 36 S. E. 920.-Question here was the preparation of a paper, rather than election not to pursue a study. 93Illinois: Hagler v. Lamrner (1918) 284 Ill. 547, 120 N. E. 575. Indiana: Blue v. Beach, (1900) 155 Ind. 121, 56 N. E. 89, 50 L.R.A. 64. Minnesota: State ex rel. Freeman v. Zimmerman (1902) 86 Minn. 353, 90 N. W. 783, 58 L. R. A. 78. North Carolina: Hutchins v. Durham (1904) 137 N. C. 68, 49 S. E. 46. North Dakota: Martin v. Craig (1919) 42 N. D. 213, 173 N. W. 787. 62 The Legal Authority of the American Public School The state through its police power may take steps to protect the health of the people. Part of this power is delegated to the school authorities. School boards may therefore make reasonable health rules and regulations. Controversy has arisen, and particularly over vaccination regulations, as to what are reasonable requirements. Decisions have usually turned on the question of whether or not an emergency has existed. It seems universally held that unvaccinated pupils may be excluded when a contagious disease is epidemic.93 It does not seem necessary that an epidemic be actually present, but it is sufficient that there is reasonable danger that the situation develop into one.94 It has even been held reasonable to exclude unvaccinated pupils during public alarm resulting from a report that a case of small pox exists in the city.95 But when there exists no emergency, when there is no epidemic, nor imminent danger of one, the usual rule is that pupils cannot be excluded for refusal to be vaccinated.96 However, a South Dakota decision upheld a regulation requiring pupils to present a certificate or report as to general physical condition.97 But statutes requiring vaccination as a prerequisite to school attendance have been held valid and so also, of course, school board regulations made under their authority.98 How far school authorities may go in controlling pupils Texas: McSween v. Bd. of Trustees (1910) 60 Tex. Civ. App. 270, 129 S. W. 206. Utah: State ex rel. Cox v. Bd. of Ed. (1900) 21 Utah 401, 60 Pac. 1013. 94 Staffel v. San Antonio Bd. of Ed. (Tex. 1918) 201 S. W. 413; State ex ret. O'Bannon v. Cole (1909) 220 Mo. 697, 119 S. W. 424, 22 L. R. A. (N. S.) 986. 95 Duffield v. School Dist. of Williamsport (1894) 162 Pa. 476, 29 Atl. 742, 25 L. R. A. 152. 96Illinois: Lawbaugh v. Bd. of Ed. (1899) 177 Ill. 572, 52 N. E. 850; State ex ret. Jenkins v. Bd. of Ed. of Chicago (1908) 234 Ill. 422, 84 N. E. 1046, 17 L. R. A. (N. S.) 709. Kansas: Osborn v. Russell (1902) 64 Kan. 507, 68 Pac. 60. Michigan: Mathews v. Kalamazoo (1901) 127 Mich. 530, 86 N. W. 1036, 54 L. R. A. 736. North Dakota: Rhea v. Bd. of Ed. of Devils Lake (1919) 41 N. D. 449, 171 N. W. 103. Wisconsin: State v. Burdge (1897) 95 Wis. 390, 70 N. W. 347. 97 Streich v. Bd. of Ed. of Aberdeen (1914) 34 S. D. 169, 147 N. W. 779, L. R. A. 1915A, 632. 98 Bissell v. Davison (1894) 65 Conn. 183, 32 Atl. 348, 29 L. R. A. 251; State ex ret. Milhoof v. Bd. of Ed. (1907) 76 Ohio St. 297, 81 N. E. 568; Stull v. Reber (1906) 215 Pa. 156, 64 Atl. 419. The Work of the School Corporation 63 away from the school premises has been something of a moot question. A number of states have statutes purporting to define the limits of the control of the school over the child. Thus many states have at the present time statutes providing that school authority may be exercised over the pupils when they are on their way to school, at school and on their way home from school.99 The statutes of West Virginia provide that the pupil is under school authority when at school or on his way home, except as to bus transportation when the trip to school is also under school authority.100 Teachers are directed by the Florida statutes "To enforce needful restrictions upon the conduct of the pupils in or near the schoolhouse or grounds.... 101 The courts, however, have extended this authority and now there seems to be no doubt that certain school controls may be exercised over the pupil or student even after he has left the school authority proper and is under the parental care. A definite rule has been evolved here. It is that control may be exerted over the pupil after he has left the school authority proper, and even in the home, but only to such extent as the conduct sought to be controlled directly affects the good government, management and discipline of the school.'02 Thus it has been held that a pupil may be punished for using insulting language toward a teacher after school hours,103 but pupils can not be forced to wear school uniforms when not at 99See school laws of: Ark. (1923) ~7637, p. 42; Ariz. (1925) Par. 2805, ~4, p. 135; Cal. (1927) ~1696, p. 137; Idaho (1927) ~944, p. 96; Ky. (1926) ~4506, p. 50; La. (1926) ~54, p. 173; Miss. (1924) ~83, p. 35; Mo. (1927) ~11135, p. 18; Mont. (1927) ~1076, p. 52; Nev. (1927) ~39, p. 24; N. M. (1927) ~1101, p. 31; N. J. (1925) ~170, p. 111; Ore. (1927) Rule XXXVI, p. 195; Pa. (1927) ~1410, p. 97; Va. (1928) Reg. of St. Bd. of Ed. ~21, p. 56; Wash. (1927) ~3, p. 170; Neb. (1927-28) ~6326, p. 71. Note: that some of these are rules and regulations of state board or superintendent. 100 School Law (1927) ~87, p. 48. 101 School Laws (1925) ~169, p. 58. 102 Lander v. Seaver (1859) 32 Vt. 114, 76 Am. Dec. 156; Deskins v. Gose (1885) 85 Mo. 485, 55 Am. Rep. 387; Hutton v. State (1887) 23 Tex. App. 386, 5 S. W. 122; State v. Osborne (1887) 24 Mo. App. 309; Jones v. Cody (1902) 132 Mich. 13, 92 N. W. 495, 62 L. R. A. 160; Wayland v. Bd. of Dir. of Seattle (1906) 43 Wash. 441, 86 Pac. 642, 7 L. R. A. (N. S.) 352; Hobbs v. Germany (1909) 44 Miss. 469, 49 So. 515, 22 L. R. A. (N. S.) 983; Wright v. Bd. of Ed. (1922) 295 Mo. 466, 246 S. W. 43. 103 Lander v. Seaver, supra. 64 The Legal Authority of the American Public School school, if living with their parents.104 School trustees could not enforce a rule requiring all pupils to remain in their homes and study from seven till nine P. M.,105 but pupils have been held lawfully expelled for immoral acts committed outside of the school.106 Thus also it was held school authorities were lawfully empowered to suspend pupils responsible for publishing in a local newspaper a poem derisive of the school rules.'07 ~34. SAME- PUNISHMENT OF PUPILS. In all of these cases certain punishments have been inflicted or attempted, and the cases themselves have arisen through attempts to stop the enforcement, or remedy the injuries resulting. Various punishments are used-suspension and expulsion, denial of privileges, and corporal punishment being of course the most common. When these punishments are inflicted unlawfully certain liabilities may arise. If no power existed to pass the rule and enforce it, the punishment is unlawful. And even though the rule and its enforcement may be legal, the punishment must be reasonable. A complete discussion of this appears in chapters seven, eight, nine and ten. ~35. PROCEDURE IN EXERCISE OF AUTHORITY. The authority vested in school officers cannot be exercised in a haphazard manner, but must follow the mode prescribed by law. If this is not done the result will be invalid, and sometimes impose liability upon the acting officers. Since the school board is a corporate body or acts for one statutory or common law rules regulating notices, hearings, majorities, etc., apply.108 But in the absence of contrary proof, it is presumed that the procedure has met the requirements.109 Action on powers granted the school corporation must be 104Jones v. Day (1921) 127 Miss. 136, 89 So. 906. 105 Hobbs v. Germany, supra. 106 Douglas v. Campbell (1909) 89 Ark. 254, 116 S. W. 211, 20 L. R. A. (N. S.) 205; Sherman v. Inhabitants of Charleston (1851) 8 Cush. (Mass.) 160. 107 State ex rel. Dresser v. Dist. Bd. (1908) 135 Wis. 619, 116 N. W. 232, 16 L. R. A. (N. S.) 730. 108 Porter v. Robinson (1883) 30 Hun (N. Y.) 209; American Foundry and Furnace Co. v. Bd. of Ed. (1907) 131 Wis. 220, 110 N. W. 403; Rogers-Ruger Co. v. Bd. of School Dirs. (1909) 139 Wis. 135, 120 N. W. 849.-See also: 139 Wis. 144, 120 N. W. 853. 109 Waters v. School Dist. No. 4 (1894) 59 Mo. App. 580. The Work of the School Corporation 65 taken officially as a board. The board members cannot act validly in their personal capacities.10 Judicial and discretionary duties and powers cannot be legally delegated, although ministerial duties may."l The action must be taken at a regular or a special official meeting of the board, and not one resulting from a chance encounter of the members.l2 Where statutes prescribe detail of procedure the same must be strictly followed."3 Thus, when statutes so require, meetings must be held within the district, although anywhere within the district will do, and action taken outside the district is void.114 But in the absence of statutory requirement action may validly be taken outside the district.ll5 Requirements of notice of meetings must be observed, and absence of a member through not having been given the required notice invalidates the action;11 although, under certain conditions, a number of exceptions may be noted.17 As in other corporate bodies, a quorum is 110 State v. Leonard (1876) 3 Tenn. Ch. 177; Stewart v. Thornton (1881) 75 Va. 215; Finney v. Garner (1902) 110 Tenn. 67; 71 S. W. 592; Ryan v. Humphries (1915) 50 Okl. 343, 150 Pac. 1106, L. R. A. 1915F, 1047; Barton v. Hines (1916) 123 Ark. 619, 185 S. W. 455. 11 Mechem, Public Officers, 368-370. Judicial and discretionary duties are such as require judgment as to the course of action to be pursued; ministerial are those so definitely prescribed that judgment neither can nor may be used. 112 Armstrong v. School Dirs. (1911) 160 Ill. App. 430; Baker v. DuPage County (1923) 224 Ill. App. 550; Lewis v. Durham (1924) 205 Ky. 403, 265 S. W. 934; Andrew v. Stuart Savings Bank (1927) 204 Iowa 570, 215 N. W. 807. Contra: Lawrence v. Traner (1891) 136 Ill. 474, 27 N. E. 197; Decker v. School Dist. No. 2 (1903) 101 Mo. App. 115, 74 S. W. 390. 113 Crabb v. Celeste School Dist. (1912) 105 Tex. 194, 146 S. W. 528, 39 L. R. A. (N. S.) 601; Gillespie v. School Dist. No. 8 (1927) 56 N. D. 194, 216 N. W. 564. 114 State v. Kessler (1909) 136 Mo. App. 236, 117 S. W. 85; Crawford v. School Twp. (1918) 182 Iowa 1324, 166 N. W. 702. 115 Cobberly v. Gainer et al. (1911) 69 W. Va. 699, 72 S. E. 790; Mechem, Public Officers, 576. 116 Johnson v. Dye (1910) 142 Mo. App. 424, 127 S. W. 413; Barclay v. School Twp. (1912) 157 Iowa 181, 138 N. W. 395; Wood v. School Dist. No. 73 (1917) 137 Minn. 138, 162 N. W. 1081; State v. Tucker (1918) 39 N. D. 106, 166 N. W. 820. 117 Reasonable notice only is required, and if all are present such notice is presumed.-People v. Frost (1889) 32 Ill. App. 242; Capehart v. Bd. of Ed. (1918) 82 W. Va. 217, 95 S. E. 838. Where there has been an agreement of all the members as to a meeting, no further formal notice is necessary.-Olney School Dist. v. Christy (1899) 81 Ill. App. 304. When a member, unable to be present has not been notified, it has been held that his failure to receive notice did not invalidate action.-Consol. School Dist. v. Griffin (1925) 201 Iowa 63, 206 N. W. 86. 66 The Legal Authority of the American Public School L ~ ~....... necessary to board action,118 and the usual majority rule also applies.19 Thus it was said by Chief Justice Shaw in an early Massachusetts case, "Where a body or board of officers is constituted by law to perform a trust for the public, or to execute a power, or perform a duty prescribed by law, it is not necessary that all should concur in the act done. The act of the majority is the act of the body. And where all have due notice of the time and place of meeting, in the manner prescribed by law if so prescribed, or by the rules and regulations of the body itself if there be any, otherwise if reasonable notice is given, and no practice or unfair means are used to prevent all from attending and participating in the proceedings, it is no objection that all the members do not attend if there be a quorum."120 Statutes usually provide for, and the courts usually affirm the necessity of making a record of the board's actions,"12 although it is not necessary to the validity of all the various rules and regulations for the management of the schools, that they be recorded.122 The discretionary power vested in school authorities does not give them the right to act wantonly, arbitrarily, or maliciously. Such abuse of discretion will invalidate the action 118 Commonwealth v. Fletcher (1897) 180 Pa. St. 456, 36 Atl. 917; Cunningham v. Bd. of Ed. (1903) 53 W. Va. 318, 44 S. E. 129. Two out of three may act if third notified.-Folsom v. Streeter (1840) 24 Wend. (N. Y.) 266; Gildersleeve v. New York Bd. of Ed. (1863) 17 Abb. Pr. 201. 119 Paillette v. Carr (1814) 3 Mart. O. S. (La.) 489; Herrington v. Dist. Twp. of Liston (1877) 47 Iowa 11. 120 Williams v. School Dist. (1838) 21 Pick (Mass.) 75, 32 Am. Dec. 243. 121 35 Cyc. 906; Horne v. School Dist. (1910) 75 N. H. 411, 75 Atl. 431; Leahy v. Joint School Dist. No. 12 (1928) 194 Wis. 530, 217 N. W. 293. 122 Record not necessary to validity of a decision of expulsion.-Russell v. Lynnfield (1874) 116 Mass. 365; nor to an order to discontinue school.-Tufts v. State (1889) 119 Ind. 232, 21 N. E. 892. Rule regulating age of admission not invalid though not recorded.-Alvord v. Inhabitants of Chester (1901) 180 Mass. 20, 61 N. E. 263. Formal record not necessary to official action.-Butler v. Joint School Dist. No. 4 (1914) 155 Wis. 626, 145 N. W. 180. If intention clearly manifest, minute and orders need not be in legal form.-Montgomery v. Claybrooks (1926) 213 Ky. 493, 281 S. W. 469. Construction of record, not technical, but to show manifest intention.-Quisenberry v. School Dist. No. 6 (1905) 75 Neb. 47, 105 N. W. 982. Amendment may be made to show truth.-Beauchamp v. Consol. School Dist. No. 4 (1923) 297 Mo. 64, 247 S. W. 1004; Phenicie v. Bd. of Ed. Dist. No. 305 (1927) 326 Ill. 73, 157 N. E. 34,-but not to show a falsehood,-Jackson v. School Directors (1925) 232 Ill. App. 102. The Work of the School Corporation 67 taken and may attach personal liability.'23 Where a hearing is required, as is often the case precedent to dismissal of a teacher or exclusion of a pupil, such hearing must be a fair one.124 But these hearings need not follow formal trial procedure.125 ~36. CONTROL BY COURTS. The decisions of a school board are not necessarily final. Provisions are made by statute in many states for appeals to various higher school officials or tribunals such as the county or the state superintendent or the state board of education.'26 The finality of the decisions of these higher school tribunals is something of a controversial subject,'27 but where such appeals are provided they must usually be sought before seeking court remedy.128 123 Error in judgment is not abuse.-State v. Gray (1883) 93 Ind. 303. Discrimination against graduates of a parochial school, while admitting their equal qualifications is abuse of discretion.-Creyhon v. Bd. of Ed. (1917) 99 Kan. 824, 163 Pac. 145, L. R. A. 1917C, 993. Arbitrary exclusion of pupil without assigning reason is abuse.-Jackson v. State (1898) 57 Neb. 183, 77 N. W. 662, 42 L. R. A. 792. Arbitrary discharge and ejection of a teacher because another is desired is abuse of discretion.McCutchen v. Windsor (1874) 55 Mo. 149. When graduation requirements have been met, discretion ends, and certificate must issue.-State ex rel. Roberts v. Wilson (1927)........ Mo. App.....-.., 297 S. W. 419. A rule for pupil control may be so unreasonable as to amount to abuse of discretion. -Kinzer v. Marion Indep. School Dist. (1906) 129 Iowa 441, 105 N. W. 686, 3 L. R. A. (N. S.) 496. One of several bids arbitrarily and fraudulently selected is abuse of discretion.-School Dist. No. 2 v. Richards (1922) 62 Mont. 319, 205 Pac. 206. 124 Fair hearing is necessary to dismissal of a teacher. Home v. School Dist. (1910) 75 N. H. 411, 75 Atl. 431. In an exclusion hearing the facts must be ascertained and considered.-Bishop v. Inhabitants of Rowley (1896) 165 Mass. 460, 43 N. E. 191. Such investigation cannot be wholly delegated.-Shaw v. Small (1924)........ Me........., 125 Atl. 496,-but the requirements are met if the board reviews and sanctions the findings of a committee.-Miller v. Clement (1903) 205 Pa. 484, 55 Atl. 32. 125 An exclusion hearing needs no formal trial nor notice.-Vermillion v. State ex rel. Engelhardt (1907) 78 Neb. 107, 110 N. W. 736. Mere errors in admission or exclusion of evidence do not render the decision invalid.-Morrison v. City of Lawrence (1902) 186 Mass. 456, 72 N. E. 91. 126 Appeals to county superintendent.-Security Nat. Bank v. Bagley (1926) 202 Iowa 701, 210 N. W. 947; Lyle v. State (1909) 172 Ind. 502, 88 N. E. 850; Trustees of Chilcothe Indep. Dist. v. Dudney (1911) (Tex. Civ. App.) 142 S. W. 1007; to county superintendent and state board.School Dist. No. 13 v. County Superintendent (1906) 36 Colo. 393, 85 Pac. 696; to state superintendent and state board.-People ex rel. Bd. of Ed. of N. Y. City v. Finley (1914) 211 N. Y. 51, 105 N. E. 109; Ridgeway v. Bd. of Ed. (1916) 88 N. J. L. 530, 96 Atl. 390. 127 Trusler, School Law, 77-82. 128 Denna Indep. School Dist. v. First State Bank (1921) (Tex Civ. App.) 227 S. W. 974; High, Ex. Rem. (2nd Ed.) ~~16, 617, 771; Lewis & Spelling, Injunction, ~44. 68 The Legal Authority of the American Public School The courts will not interfere with the sound exercise of the discretion vested by statute in the boards of education. The legislatures intended the judgment in these matters to be left in the hands of the school authorities. But the courts will interfere where there is a clear abuse of that discretion-when decisions have been made and acts performed wantonly, maliciously, fraudulently, illegally, in bad faith or otherwise in excess of authority, and which causes palpable injustice or injury.l29 The writ of mandamus is one of the instruments most frequently used in controlling the action of school authorities. Mandamus is an order usually issued by the highest court of the state to compel the doing of a thing specified in the writ.130 It will not issue to compel a decision to be determined in a particular manner-in other words, will not be used to control discretion.131 But it will issue to compel a tribunal to at least A29 Alabama: Christian v. Jones (1924) 211 Ala. 161, 100 So. 99. Arkansas: Pugsley v. Sellmeyer (1923) 158 Ark. 247, 250 S. W. 538. Georgia: County Bd. of Ed. v. Hunt (1923) 2 Ga. App. 665, 116 S. E. 900. Illinois: Thompson v. Beaver (1872) 63 Ill. 353; Wilson v. Bd. of Ed. of Chicago (1909) 233 Ill. 464, 84 N. E. 697, 15 L. R. A. (N. S.) 1136; Smith v. Bd. of Ed. of Oak Park (1913) 182 Ill. App. 342; Segar v. Bd. of Ed. of Rockford (1925) 317 11. 418, 148 N. E. 289. Indiana: State v. Gray (1883) 93 Ind. 303. Iowa: Kinzer v. Marion Indep. School Dist. (1906) 129 Iowa 441, 105 N. W. 686, 3 L. R. A. (N. S.) 496. Kansas: Topeka Bd. of Ed. v. Welch (1893) 51 Kan. 792, 33 Pac. 654. Kentucky: Bd. of Ed. v. Booth (1901) 110 Ky. 807, 62 S. W. 872, 53 L. R. A. 787. Maryland: Wiley v. School Com'rs (1879) 51 Md. 401. Massachusetts: Bishop v. Inhabitants of Rowley (1896) 165 Mass. 460, 43 N. E. 191; Carr v. Inhabitants of Dighton (1918) 229 Mass. 304, 118 N. E. 525. Missouri: King v. Jefferson City School Bd. (1880) 71 Mo. 628, 36 Am. Rep. 499. Oklahoma: Kellogg v. School Dist. No. 10 (1903) 13 Okl. 285, 74 Pac. 110. Pennsylvania: Wharton et al. v. School Directors (1862) 6 Wright 358; Commonwealth v. Jenks (1893) 154 Pa. St. 368, 26 Atl. 371. South Dakota: Dahl v. Indep. Dist. No. 2 (1922) 45 S. D. 366, 187 N. W. 638. West Virginia: Herald v. Bd. of Ed. (1909) 65 W. Va. 765, 65 S. E. 102, 31 L. R. A. (N. S.) 588; Spedden v. Bd.of Ed. of Fairmont (1914) 74 W. Va. 181, 81 S. E. 724, 52 L. R. A. (N. S.) 163. 30 Cyc. Law Dict. 638. 131 Mechem, Public Officers, ~945; Bd. of Ed. of Sycamore v. State (1909) 80 Ohio St. 133, 88 N. E. 412; Montenegro-Riehm Music Co. v. Bd. of Ed. (1912) 147 Ky. 720, 145 S. W. 740; People ex rel. Lewis v. Graves (1926) 127 Misc. Rep. 135, 215 N. Y. S. 632. The Work of the School Corporation 69 exercise the discretion conferred upon it.132 It is used to compel the performance of a specified ministerial duty-one involving no exercise of discretion,'33 and issues to remedy injustices or injuries resulting from abuse of discretion by requiring the undoing of the cause.134 The writ of injunction is also much used. This is also a court order, but it usually restrains or prohibits the doing of a thing, whereas mandamus requires performance,135 and it operates in matters affecting property rights.136 In school cases it is used to prevent illegal or unauthorized disbursement of funds or disposition of school property.'37 The writ of quo warranto is used to determine title to public office,138 but has also been held to lie to test existence of corporate powers, as the power of a board of education to pass certain rules.139 ~37. CHAPTER SUMMARY. The corporate character of the school district or board brings with it certain primary corporate powers such as to acquire, hold and dispose of property, to contract and be contracted with, to sue and be sued and to exercise the usual powers of corporations of the same rank in doing those things necessary to the attainment of the ends for which the corporation was created. The school corporation possesses only those powers expressly given by statute or 132 Cyc. Law Diet. 638; Mechem, Public Officers, ~947; Decatur v. Paulding (1840) 14 Pet. (U. S.) 497, 10 L. Ed. 559; Creyhon v. Bd. of Ed. (1917) 99 Kan. 824, 163 Pac. 145, L. R. A. 1917C, 993. 133High, Ex. Rem. ~24; County Bd. of Ed. v. Hunt (1923) 29 Ga. App. 665, 116 S. E. 900; State ex rel. School Dist. No. 1 v. Gordon (1910) 231 Mo. 547, 133 S. W. 44; Valentine v. School Dist. of Casey (1921) 191 Iowa:1100, 183 N. W. 434; Woodcock v. Bd. of Ed. of Salt Lake City (1920) 55 Utah 458, 187 Pac. 181; Alexander v. Lowrence (1921) 182 N. C. 642, 109 S. E. 639. 134 See cases cited to note 129 supra. 135 Lewis & Spelling, Injunctions, ~21. 136 Ibid., ~58 et seq. 137Olmstead v. Carter (1921) 34 Idaho 276, 200 Pac. 134; Wiley v. School Com'rs (1879) 51 Md. 401; McGregor v. State (1903) 31 Ind. App. 483, 68 N. E. 315; Herald v. Bd. of Ed. (1909) 65 W. Va. 765, 65 S. E. 102, 31 L. R. A. (N. S.) 588; Kellogg v. School Dist. No. 10 (1903) 13 Okl. 285, 74 Pac. 110. 138 Mechem, Public Officers, ~478. 139 People ex rel. Longress v. Bd. of Ed. of Quincy (1882) 101 Ill. 308, 40 Am. Rep. 196. Was allowed in Oregon to test existence of a high school district.State v. Goff (1924) 110 Ore. 349, 221 Pac. 1057. 70 The Legal Authority of the American Public School those arising through necessary implication. But specific statutory grants of power and impositions of duty, together with judicial construction of these and general grants of power, result in a complex mass of powers, duties, and prohibitions, and this despite the limited character of a quasi corporation. School boards have the power to pass resolutions for the government and management of the school and all its affairs. This includes making rules and regulations in regard to actual instruction and the control and discipline of pupils. For this purpose broad discretion is vested in the school authorities. This discretion must not be abused or exceeded, or the courts will interfere to restrain such action, or to remedy the injuries resulting. CHAPTER IV The Legal Authority of Cities over Public Schools as Shown by Municipal Liability for Torts of School Boards Analysis of Chapter SECTION PAGE Scope of chapter...................................................... 38 71 Torts in general............................................................ 39 72 Governmental non-liability in tort...................... 40 75 Tort liability of municipal corporations In general.................................................................. 41 76 General rule of non-liability for torts of school board 42 77 The case of Hill v. City of Boston....................................43 78 Application of the common-law rule Construction and maintenance of school buildings....44 79 Injuries in relation to school premises or defective apparatus...................................... 45 80 Municipal non-liability based on city and school separation 46 81 Recovery allowed-nuisance...................... 47 83 Statutory liability-the Massachusetts statute on wrongful exclusion -—........-.... ----..- 48 84 Chapter summary............................. 49 85 ~38. SCOPE OF CHAPTER. The preceding chapter showed that although the school and the municipal corporation are often separate and distinct entities, yet sometimes a close relationship exists between the two. Indeed sometimes the schools are regarded as a branch or department of the city. The question here then is: what effect does this varying relationship have upon the city's liability for the torts arising in relation to city schools, if such liability does exist? Since we approach with this chapter for the first time the actual question of tort liability, it is necessary to digress at this point to consider briefly the general subject of torts and tort liability. Particularly will we wish to consider the doctrine of governmental non-liability in torts for the reason that this directly affects the question of the liability of a city for the acts of the local boards of education. 72 The Legal Authority of the American Public School ~39. TORTS IN GENERAL.1 Each individual has under our government certain rights. Every person has a right to personal security. That is, he has a right to live, a right to security against attacks and injuries, and a right, within certain limits, to do as he wishes. Each individual has a right to immunity from attacks upon his reputation as well as interference with his bodily security. A large number of the rights enjoyed come under the head "civil rights." These are due each person equally. Important among these are the liberty to worship, and the right to acquire an education. As residents and citizens of this nation each individual also possesses certain political rights. Here are such rights as those of assembly and petition. These rights, as compared with the civil rights, are really privileges, and equality is not guaranteed. Thus, for example, the right of suffrage is a qualified one. Family or domestic rights may be mentioned as yet another large group. All these rights are subject to removal by the government in the exercise of legal procedure. Thus we see life and liberty taken as punishment for criminal offenses. But when these rights are wrongfully taken away or interfered with to the injury of the possessor, the government usually sustains the individual in an action to recover damages as a recompense for his loss or injury. So where there has been an unlawful invasion of bodily integrity, an action in tort may be maintained for battery.2 And when a person has been wrongfully put into reasonable fear by an attempt to commit a battery, an action may be maintained for assault.3 So where there has been an unlawful invasion of a person's interest in freedom from confinement a tort action lies for false imprisonment.4 When there has been a wrongful interference with property rights, actions may be maintained in trespass.5 When a person's right to security in his reputation has been interfered with by defamation, action 1 See generally: Cooley on Torts (3rd Ed.); 38 Cyc., 408 et seq.; 26 R. C. L. 755 et seq. 2 Hatchett v. Blacketer (1915) 162 Ky. 266, 172 S. W. 533. 3 Beach v. Hancock (1853) 27 N. H. 223. 4 Holmes v. Blyler (1890) 80 Iowa 365, 45 N. W. 756. 5 Where the interference is with possession of real property.-Pfeiffer v. Grossman (1853) 15 Ill. Rep. 53. Winteringham v. Lafoy (1827) 7 Cow. (N. Y.) 735. Legal Authority of Cities over Public Schools 73 lies for libel or slander.6 So where one has relied to his injury upon false representations, recovery may be had in an action for fraud and deceit.7 Where there has been unlawful interference with one's right to undisturbed legal pursuit of one's business affairs tort action may also lie.8 It is not necessary that the injury result from an intentional wrong of the defendant. When the harm results from negligence, the injury may still be remedied by action in tort. But if the person has himself assumed certain risks, or has himself been negligent, such circumstances may bar his recovery.9 It is necessary to action that there be both a wrong done, and damage resulting therefrom, although the damage is sometimes merely presumed.10 So where a wrongful act is intended, but such an act does not come to a realization, unless there is a threat amounting to assault, no action lies for recovery. Also when an injury has occurred, it is necessary to recovery that the wrongdoing be the proximate cause, and if some agency has intervened between the wrong and the injury, which is itself the real cause of the injury, no recovery, of course, will be allowed.1 There are certain instances where there will be no recovery, because the act is a privileged one. Injury to a highwayman resulting from the acts of self defense of an intended victim, and damage resulting from error in judgment of a judicial officer are illustrations. Crime and tort are not synonymous. But a crime may also be a tort and vice versa.2 This is the case when the act is a public wrong in that it violates a statute, and a private wrong in that it interferes with a private right. So, also, although tort liability is spoken of as non-contractual liability, an act which may sustain an action for breach of contract may also be found an action in tort. Thus Cooley said: "If one by means of a false warranty is enabled to accomplish a sale of property, the pur6 Libel-written defamatory words.-Montgomery v. Knox (1887) 23 Fla. 595, 3 So. 211. Slander-spoken defamatory words.-Pollard v. Lyon (1875) 91 U. S. 225, 23 L. Ed. 308. 7 Thompson v. Randall (1906) 28 Ky. L. Rep. 716, 90 S. W. 251. 8 Swain v. Johnson (1909) 151 N. C. 93, 65 S. E. 619. 9 Voluntary assumption of risk.-Cooley on Torts (3rd Ed.) p. 1042 -1055. Contributory negligence.-21 Harv. L. Rev. 233 (1908), p. 234-242. 10 Cooley on Torts (3rd Ed.) pp. 82-89. 11 Hoag v. Lake Shore and M. S. Ry. Co. (1877) 85 Pa. 293. 12 4 Blackstone, Comm. (Lewis) 5. 74 The Legal Authority of the American Public School chaser may have his remedy upon the contract of warranty, or he may bring suit for the tort."l3 Much difficulty seems to be experienced in formulating a definition of a tort, and many of the authorities do not attempt it. Naturally therefore, it will not be attempted here, but left to deduction from the foregoing. Persons with immature minds, such as infants, or with unsound minds, as lunatics, cannot make valid contracts and can, of course, not be sued for their breach. The same is true with criminal liability (with certain limitations.) But as to tort liability the case is different. There the main concern is the redress of the injury, and the identity or intention of the injurer is of little importance. The prime purpose is to make amends for the damage done, and not to punish the injurer. Thus, infancy is often immaterial, although it does play an important part where malice, negligence, or a contractual relationship is the basis of the tort, and may in those instances bar recovery. Insane persons also are usually held responsible for their torts, but with certain exceptions, as in the case of libel or slander. Private corporations are liable in tort practically the same as natural persons. An old rule held that a corporation was not liable for torts in which malice was an element, but that the agents of the corporation committing the act were alone liable, no longer holds. The reason given for the old rule was that the state in creating the corporation, had given no power to perform such acts. The rule which obtains today was stated as follows by Judge Cooley: "The rule is now well settled that, while keeping within the apparent scope of corporate powers, corporations have a general capacity to render themselves liable for torts, except of those where the tort consists in the breach of some duty which from its nature could not be imposed upon or discharged by a corporation. The rule of liability embraces not only the negligences and omissions of its officers and agents who are put in charge of or employed in the corporate business, but also all tortious acts which have been authorized by the corporation, or which are done in pursuance of any general 13 Cooley on Torts (3rd Ed.) 156. Legal Authority of Cities over Public Schools 75 or special authority to act in its behalf on the subject to which they relate, or which the corporation has subsequently ratified."14 The law differs materially with respect to the torts of the national and state governments and those of other public corporations; hence that is considered separately. ~40. GOVERNMENTAL NON-LIABILITY IN TORT. The state governments, and the federal government as well, may commit torts, since they are corporations, but this does not mean that action may be taken against them. No suit may be maintained against a sovereign without its consent. Chief Justice Taney of the United States Supreme Court said, "It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege and permit itself to be made a defendant in a suit by individuals or by another state. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it.""' The United States has consented to certain actions against itself by the Tucker Act of 1887,16 but actions brought directly in tort are not included.17 In the same manner, states may consent to suit against themselves. Contractual actions are 14 Cooley on Torts (3rd Ed.) 200. 15 Beers v. Arkansas (1857) 61 U. S. (20 How.) 527, 15 L. Ed. 991. 16 U. S. Comp. St. 1901, p. 752. 17 The Tucker Act gives actions under the following four classes of cases: "(1) Those founded upon the Constitution or any law of Congress, with an exception of pension cases; "(2) Cases founded upon a regulation of an executive department; "(3) Cases of contract, express or implied, with the government; "(4) Actions for damages, liquidated or unliquidated, in cases not sounding in tort."-Dooley v. U. S. (1901) 182 U. S. 222, 21 Sup. Ct. 762, 45 L. Ed. 1074. But if the action comes under one of the three first groups, it seems inquiry need not be made as to whether it is tort or not. -Ibid. See also: Temple v. U. S. (1918) 248 U. S. 121, 39 Sup. Ct. 56, 63 L. Ed. 162. 76 The Legal Authority of the American Public School thus quite frequently allowed, but seldom actions in tort.18 The substantial result is, then, that the states are immune from tort responsibility.19 This same immunity is reflected in the law of the tort liability of municipal corporations. ~41. TORT LIABILITY OF MUNICIPAL CORPORATIONS - IN GENERAL. Municipal corporations are possessed of a dual nature. On the one hand they are merely local corporations voluntarily organized by their inhabitants for their local convenience. But on the other hand, the states have made use of these organizations to aid in the performance of certain state functions, and to that extent they are agents of the state. In accordance with this dual nature, the functions and duties of the municipal corporation divide into two groups. First, the governmental functions, exercised by the municipality in its state agency; second, the municipal or corporate functions, exercised for local convenience or profit.20 This division is not disputed, but just where the line between the two is drawn, is very much in question.21 Some functions, however, have been agreed upon. Cooley has listed the following as "prominent among" the governmental functions of a municipality: "(1) preservation of the public peace; (2) the preservation of the public health; (3) punishment of criminals; (4) preventing destruction by fire; (5) furnishing public education; (6) providing for the poor."22 A municipality is responsible for torts in relation to its municipal, corporate and proprietary functions to the same extent as an individual or a private corporation.23 But in respect to the governmental functions of the municipality, the doctrine of non-liability of the sovereign enters and here the 18 Borchard, Edwin M. Government liability in tort. (1924) 34 Yale L.J. 1-45. McQuire, J. M. State liability for tort. (1916) 30 Harv. L. Rev. 20. McGraw v. Rural Dist. No. 1 (1926) 120 Kan. 413, 243 Pac. 1038. A comment on this doctrine of non-liability appears in the concluding chapter. 19 Clodfelter v. State (1882) 86 N. C. 51, 41 Am. Rep. 440. 206 McQuillin, Mun. Corp. (2d Ed. 1928) ~2792; 28 Cyc. 1257; 75 Pa. L. Rev. 556-63. 21 75 Pa. L. Rev. 556-63. 22 Cooley's Mun. Corp. 377. 236 McQuillin Mun. Corp. (2d Ed. 1928) ~2792; 4 Dill. Mun. Corp. (5th Ed. 1911) ~1645; Cooley's Mun. Corp. 383; 28 Cyc. 1257. Legal Authority of Cities over Public Schools 77 I I I! I municipality as the state's agent is not liable in tort.24 A further refinement may be mentioned in that "where the duty is not governmental but ministerial and absolute as distinguished from legislative, discretionary, judicial or quasi-judicial, the municipal corporation is liable for damages arising because of omission to perform it, or, for negligence in its execution."25 ~42. SAME-GENERAL RULE OF NON-LIABILITY FOR TORTS OF SCHOOL BOARD. We have seen the educational work of the municipality rated as a governmental function. Application of the doctrine of non-liability for torts in governmental functions leads to the conclusion that the municipal corporation cannot be held to respond in damages for torts in relation to its schools. An examination of the cases reveal that this is indeed the fact, and municipal corporations are generally held not liable for school torts in the absence of statute imposing such liability.26 24 6 McQuillin, Mun. Corp. (2d Ed. 1928) ~2793; Cooley's Mun. Corp. 376; 28 Cyc. 1257. 256 McQuillin, Mun. Corp. (2d Ed. 1928) 781. See also: 4 Dill. Mun. Corp. (5th Ed. 1911) ~1645; 28 Cyc. 1262. 26 Georgia: Nabell v. City of Atlanta (1925) 33 Ga. App. 545, 126 S. E. 905. Kentucky: Ernst v. City of West Covington (1903) 25 Ky. L. Rep. 1027, 76 S. W. 1089; Clark v. City of Nicholasville et al. (1905) 27 Ky. L. Rep. 974, 87 S. W. 300. Massachusetts: Biglow v. Inhabitants of Randolph (1860) 80 Mass. (14 Gray) 541; Hill v. City of Boston (1877) 122 Mass. 344, 23 Am. Rep. 332; Sullivan v. Boston (1879) 126 Mass. 542; Howard v. City of Worcester (1891) 153 Mass. 426, 27 N. E. 11, 12 L. R. A. 160, 25 Am. St. Rep. 651; McNeil v. City of Boston (1901) 178 Mass. 326, 59 N. E. 810. North Dakota: Anderson v. City of Fargo (1922) 48 N. D. 722, 186 N. W. 378. New York: Terry v. Mayor (1861) 8 Bosw. 504; Treadwell v. City of New York (1861) 1 Daly 123; Ham v. City of New York (1877) 70 N. Y. 459, affirming 37 N. Y. Sup. Ct. (5 Jones & S) (1874) 458; Brown v. City of New York (1900) 32 N. Y. Misc. 571, 66 N. Y. S. 382; Titusville Iron Co. v. City of New York (1912) 207 N. Y. 203, 100 N. E. 806 -reversing judgment (1911) 144 App. Div. 893, 128 N. Y. S. 1147; McCarton v. City of New York (1912) 149 App. Div. 516, 133 N. Y. S. 939. Ohio: Diehm v. City of Cincinnati (1874) 25 Ohio St. 305, 5 Ohio Dec. 215. Pennsylvania: McCullough v. City of Philadelphia (1906) 32 Pa. Sup. Ct. 109. Rhode Island: Wixom v. City of Newport (1882) 13 R. I. 454, 34 Am. Rep. 35. United States: Allen v. City of Brooklyn (1871) 1 Fed. Cas. No. 218, 8 Blatchf. 535. Texas: McVey v. City of Houston (1925) 273 S. W. 313. Wisconsin: Folk v. City of Milwaukee (1900) 108 Wis. 259, 84 N. W. 420, 9 Am. Neg. Rep. 207. 78 The Legal Authority of the American Public School ~43. SAME-THE CASE OF HILL V. CITY OF BOSTON. This case is a typical one as to its state of facts and its result, and hence serves well to illustrate these cases generally. It is also the leading case in its arguments and so deserves special attention. The city of Boston was required by general statute to provide and maintain school buildings. In this building there was negligently maintained a winding staircase with a dangerously low railing. The plaintiff offered to prove that the defendant knew the building to be dangerous and unfit for public school purposes, that teachers had notified the school committee of the dangerous condition, but that although they had promised to repair the railing, they had neglected to do so. The plaintiff, a pupil eight years of age, fell over this railing from the second flight of stairs and was seriously injured. Action was brought against the city in tort.27 There was no statute either giving or denying the right to bring such action. Chief Justice Gray made a very careful and searching inquiry into preceding cases, and has summarized the same in his opinion, reaching the conclusion that although the negligence of the city was admitted, nevertheless the action could not be sustained. Judge Dillon outlined, in part, the principal holding of this case. "The principle of the decision was stated to be, that according to the well-settled law of Massachusetts, no private action, unless authorized by express statute, can be maintained against a town or city for the neglect of a public duty imposed upon it as the agent of the public, by general laws for the benefit of the public, and from the performance of which the corporation receives no profit or special advantage. Whether the result would have been different if the duty in question had been imposed on the city by a special charter, was not, of course, decided, but the reasoning is evidently against any distinction based upon the particular mode in which such a duty is prescribed. Whether the neglected duty involves a liability depends, in the judgment of the court, upon the nature of the duty; that is to say, whether it is imposed for the pecuniary profit or other special advantage of the city, -if so, the city is liable; or whether it is a duty imposed upon the city as a public instrumentality of the State, without pecu 27 Hill v. City of Boston (1877) 122 Mass. 344, 23 Am. Rep. 332. Legal Authority of Cities over Public Schools 79 niary or other special advantage to the city,-if so, the city is not liable."28 Under this principle recovery has been denied in suits for damages against cities, under a variety of facts. ~44. APPLICATION OF THE COMMON-LAW RULE - CONSTRUCTION AND MAINTENANCE OF SCHOOL BUILDINGS. The tort in question in Hill v. City of Boston was the negligent maintenance of a dangerously low stair-railing. The question of the city's tort liability has arisen in connection with the maintenance and repair of school buildings relatively frequently, and always with the same result. Thus in a Kentucky case with a state of facts exactly the same as in Hill v. City of Boston, the same result was reached, even though other children had fallen over the same bannisters before the plaintiff's injury and no repairs had been made.29 In an action against the city of Chicago where an injury occurred during the erection and roofing of a school building, it was held that although a statute declared that the board of education should with the "concurrence" of the city council erect schoolhouses, the city was absolved from liability.30 It was said that "the erection of the school building was of no benefit to the city as a municipality and whatever connection it had with the board of education in the construction of the building was simply for the purpose of discharging a public duty cast upon it by the law-making power of the state." "That duty," it was said, "is governmental in character and nature, and was merely rendered in obedience to the statute, because it was deemed expedient by the legislature, in the distribution of the power of government, to require the city to perform a public service in which the city, as a corporation, had no interest. The intestate of the appellant, and others engaged in the work of constructing the building, must be regarded as servants and agents of the state, and not of the city, and for that reason the doctrine of respondect superior is not applicable against the city." Where a pupil was injured because of a defect in a school's 28 4 Dillon, Mun. Corp. (5th Ed. 1911) ~1643. 29 Clark v. City of Nicholasville et al. (1905) 27 Ky. L. Rep. 974, 87 S. W. 300. 80 Kinnare v. City of Chicago (1898) 171 Ill. 332, 49 N. E. 536. 80 The Legal Authority of the American Public School heating apparatus, it was held that a private action did not lie at common law against a city, neither for the non-performance nor negligent performance of a public duty involuntarily imposed upon the city, unless some privilege or profit accrued to the city in consideration of the duty.31 The city of Houston, Texas was held not liable to a pupil for an injury caused by a falling archway in a school building, the duty of the city in this respect being public and governmental.32 A similar result for a similar reason was reached in an action against the city of Milwaukee where a child had died from the effects of sewer gas negligently allowed to escape into a school building.3, ~45. INJURIES IN RELATION TO SCHOOL PREMISES OR DEFECTIVE APPARATUS. The city of New York was held not liable in the suit of a pupil injured by catching her leg in a hole in the board flooring of a playground.34 Where ice was allowed to accumulate on a school lot, part of which was used as a passage, and in injury resulted therefrom, the city of Boston was held not liable.35 Likewise the city of West Covington, Kentucky was held not responsible in damages to a pupil injured by falling from an unguarded wall around a school lot that had been raised from the level of the street.36 A town was held not liable for an injury resulting to a pupil by reason of a dangerous excavation left in a school house yard.37 So also where injuries were sustained by reason of a horse becoming frightened from the blasting of rock during the excavation for a public school house, a city was held not liable.38 A fourteen year old boy was allowed to use an unguarded ripsaw in an Atlanta, Georgia technological high school operated by the city. The city was held not liable for injuries to the boy, since it was held that the city in operating this school was 31 Wixom v. City of Newport (1882) 13 R. I. 454, 34 Am. Rep. 35. 32 McVey v. City of Houston (1925) 273 S. W. 313. 33 Folk v. City of Milwaukee (1900) 108 Wis. 359, 84 N. W. 420, 9 Am. Neg. Rep. 207. 34 Brown v. City of New York (1900) 32 N. Y. Misc. 571, 66 N. Y. S. 382. 35 Sullivan v. City of Boston (1879) 126 Mass. 542. 36 Ernst v. City of West Covington (1903) 25 Ky. L. Rep. 1027, 76 S. W. 1089, 63 L. R. A. 652. 37 Biglow v. Inhabitants of Randolph (1860) 80 Mass. (14 Gray) 541. 38 Howard v. City of Worcester (1891) 153 Mass. 426, 27 N. E. 11, 12 L. R. A. 160. Legal Authority of Cities over Public Schools 81 engaged in the performance of a governmental function.39 It is seen from these cases, and those mentioned in the preceding section that the result does not depend upon the state of facts, but that the common-law doctrine of municipal nonliability for their own and their servants' torts in the performance of the governmental function of education is applied with almost complete disregard as to the facts in any case in hand. ~46. MUNICIPAL NON-LIABILITY BASED ON CITY AND SCHOOL SEPARATION. The separation of the school district and the city was discussed at length in Chapter II. It was there shown that the school corporation is usually a separate and distinct entity from the municipality in which it may exist. We would expect this to be reflected in cases in which cities are sought to be held for the torts committed in their city schools. This is indeed so, and in a number of instances this separation is cited as the reason, or one of the reasons, for declaring cities not liable for school torts.40 39 Nabell v. City of Atlanta (1925) 33 Ga. App. 545, 126 S. E. 905. 40 New York: Terry v. Mayor (1861) 8 Bosw. 504. City of New York not liable for damage resulting from unskillful work of a mason working under the contracts of ward school officers, the relation of master and servant not existing between the defendant and such laborers.-Treadwell v. City of New York (1861) 1 Daly 123. City of New York cannot be called upon to answer for the omission of the board of education, the rule of respondeat superior not being applicable, since the board is independent of the city as to tenure of office and discharge of duties.-Dannat v. Mayor of New York City (1875) 6 Hun. 88; Ham v. City of New York (1877) 70 N. Y. 459. Relation of principal and agent does not exist between the city of New York and the board of education, and the city is not liable therefore for the torts of the board.-Titusville Iron Co. v. City of New York (1912) 207 N. Y. 203, 100 N. E. 806, reversing judgment (1911) 144 App. Div. 893, 128 N. Y. S. 1147. Since the care and control of school property is in the board of education the city of New York was not liable for the negligent maintenance of a rotted flag pole on a school building.-McCarton v. City of New York (1912) 149 App. Div. 516, 133 N. Y. S. 939. North Dakota: The board of education of Fargo being a distinct corporate entity, with full control of playground equipment, the city is not liable for an injury from negligent maintenance of such equipment.Anderson v. City of Fargo (1922) 48 N. D. 722, 186 N. W. 378. Ohio: The care, control and management of the school property being in the board of education, city of Cincinnati was not liable for injury resulting from a falling door frame.-Diehm v. City of Cincinnati (1874) 25 Ohio St. 305, 5 Ohio Dec. 215. Pennsylvania: McCullough v. City of Philadelphia (1906) 32 Pa. Sup. Ct. 109. United States: The board of education of Brooklyn being the user of a patented school seat, and the city not having power to direct the discontinuance of its use, was not liable to the patentee.-Allen v. City of 82 The Legal Authority of the American Public School Thus where water percolated from certain school premises into those of the plaintiff, the city of New York was held not liable in damages because the city was neither the creator nor the continuer of the nuisance, the board of education being the erectors and the custodians of the school building, and it would have been trespass on the part of the city to have entered and attempted to make any repairs.41 And thus in a later New York case under a state of facts almost exactly the same as in the above case, the city was held not liable for the negligence of the officers and servants of the department of education, the court saying in part: "The commissioners in the discharge of their functions were not amenable to the [municipal] corporation in any respect, and those who were in their employ as servants and subordinates were subject to the commisioners, bound to obey their orders and directions, and the defendant had no authority whatever either to employ, manage, control and direct their action, or to remove or discharge them for unskillfulness or neglect of duty. Having no right either to select or to remove, as already seen, the rule of respondeat superior could not well be applied. To render the corporation liable for the acts of officers or agents, they must necessarily have been its agents and servants, selected or appointed, and liable to be removed by, and responsible to the corporation for the manner in which they should discharge the trust reposed in them; and even when represented or elected by the corporation, it is only when the duties relate to the exercise of corporate power, and is for the benefit of the corporation that they are servants and agents within the maxim referred to. If only elected or appointed in accordance with the mandates of the law to perform a duty which is neither local or corporate, and if they are independent of the corporation in the tenure of their office and the mode of discharging its duties, they are not servants or agents of the corporation, but public or State officers, with such powers and duties as the statute prescribes, and no action lies against the corporation for their acts of negligence."42 Brooklyn (1871) 1 Fed. Cas. No. 218, 8 Blatchf. 535. See also: 35 Cyc. 972. 41 Terry v. Mayor of City of New York (1861) 8 Bosw. 504. 42 Ham v. City of New York (1877) 70 N. Y. 459, affirming 37 N. Y. Sup. Ct. (5 Jones & S.) 458. Legal Authority of Cities over Public Schools 83 ~47. RECOVERY ALLOWED-NUISANCE. Cases in which recovery is allowed against the municipality for school torts in absence of statute are very rare. However, it seems that in the case of an action for nuisance resulting from the negligent use of property, recovery has been allowed. The plumbing and drainage of a certain schoolhouse in the city of Philadelphia was negligently constructed, and as a result water and filth were deposited in the plaintiff's cellars. In an action against the city it was endeavored to bring the case within the common law rule, thus exempting the city from liability. But it was held that the rule did not apply since this was "an action for nuisance by the negligent use of property."43 In holding the city liable, Mitchell, J. said, "But, in a class of cases to which the present belongs, injuries arising from the misuse of land, there has never been any substantial hesitation in holding cities liable. The ownership of property entails certain burdens, one of which is the obligation of care that it shall not injure others in their property or persons, by unlawful use or neglect. This obligation rests, without regard to others, by virtue of their ownership, and municipal corporations are not exempt." The following rule from Dillon was then cited: "'Municipal corporations are liable for the improper management and use of their property, to the same extent and in the same manner as private corporations and natural persons. Unless acting under valid special legislative authority, they must, like individuals, use their own so as not to injure that which belongs to another.' "44 Thus, also, where an action was taken against the city of Worcester, Massachusetts, for a nuisance consisting of a wall about a school yard which wall having become pressed out, overhung the property of the plaintiff, the same was deemed actionable nuisance.45 And so a similar result was reached 43 Briegal v. City of Philadelphia (1890) 135 Pa. St. 451, 19 Atl. 1038, 20 Am. St. Rep. 885. 442 Dillon, Mun. Corp. (3d Ed.) ~985. 45 "The public use and the general benefit will not justify such a nuisance to the property of another. If more land is needed it must be taken in the regular way, and compensation paid. But if by the action of the elements, or otherwise, without the plaintiff's fault, the defendant's wall comes upon the plaintiff's land, and continues there, it becomes a nui 84 The Legal Authority of the American Public School in a suit against a Connecticut town where sewage from school buildings was discharged into a stream which deposited it upon the lands of a riparian owner.46 ~48. STATUTORY LIABILITY -THE MASSACHUSETTS STATUTE ON WRONGFUL EXCLUSION. The common law rule of municipal non-liability for school torts does, of course, not obtain where a statute expressly imposes such liability. Such statutes have been conspicuous only by their absence. The state of Massachusetts, however, has long had such a provision.47 This provision makes the municipalities of the state liable for the wrongful inadmission or exclusion of children from the public schools of the state. This statute is still in force: "The parent, guardian or custodian of a child refused admission to or excluded from the public schools shall on application be furnished by the school committee with a written statement of the reasons therefor, and thereafter, if the refusal to admit or exclusion was unlawful, such child may recover from the town in tort, and may examine any member of the committee or any other officer of the town, upon interrogatories."48 It may be noted that the statute does not define what is a wrongful exclusion. As may well be expected this has resulted in much litigation. The courts have had to decide what was and what was not lawful exclusion. The liability of the cities or towns have swung on that question, so when the exclusion has been held wrongful, recovery has been had;49 but when the exclusion has been held lawful, recovery has, of course, been denied.50 sance, for which the defendant is responsible... "-Miles v. City of Worcester (1891) 154 Mass. 511, 28 N. E. 676, 13 L. R. A. 841. 46 Watson v. New Milford (1900) 72 Conn. 561, 45 Atl. 167, 77 Am. St. Rep. 345. 47 Action in the case of Sherman v. Inhabitants of Charlestown, 8 Cush. (Mass.) 160, was taken under this statute in 1851. 48 Massachusetts School Laws (1927) Chap. 76, ~16. 49 An exclusion is wrongful if school committee in so determining acted in bad faith.-Morrison v. City of Lawrence (1902) 186 Mass. 456, 72 N. E. 91. A hearing is a necessary precedent to permanent exclusion and where plaintiff's fault was in dispute, and a hearing denied, the exclusion was wrongful.-Bishop v. Inhabitants of Rowley (1896) 165 Mass. 460, 43 N. E. 191; see also: Jones v. City of Fitchburg (1912) 211 Mass. 66, 97 N. E. 612. 50 The exclusion of a pupil of immoral and licentious character, even though such character, not manifest by licentiousness or immorality Legal Authority of Cities overPublic Schools 85 ~49. CHAPTER SUMMARY. Every person has certain civil rights and most persons also political rights. These may be lawfully taken away by the government under whose protection they are enjoyed. But wrongful interferences with these rights constitute torts for which the private persons or corporations thus wrongfully interfering are liable in damages to the person injured, although certain exceptions exist as to infants and insane persons. Privilege also constitutes another exception. But under the old doctrine that a sovereign may not be sued without its consent, neither the United States nor any of the states may be sued, neither in tort nor on contract, without their consents. Municipal corporations possess a dual nature, their functions dividing into two groups; first, the private, municipal or corporate functions, and second, the public or governmental functions. These corporations are subject to the same tort liability as private persons or corporations in their municipal functions, but not as to their governmental functions, because the doctrine of governmental immunity in tort extends to protect them. Since providing education is classed as one of the municipality's governmental functions, the common-law rule of governmental non-liability within the school, not wrongful.-Sherman v. Inhabitants of Charlestown (1851) 8 Cush. 160. Exclusion for refusal to comply with order to bow head during morning prayer, in absence of request by parents for excuse from same, not wrongful.-Spiller v. Woburn (1866) 12 Allen 127. Expulsion by a part of school committee not wrongful if later unanimously ratified by full committee.-Hodgkins v. Rockport (1870) 105 Mass. 475. Thus, also, exclusion may lawfully be made for violation of a rule made by one member of school committee, if subsequently ratified by other members.-Russell v. Inhabitants of Lynnfield (1874) 116 Mass. 365. Exclusion in good faith, because child too weak-minded to benefit by instruction, not lawful.-Watson v. Cambridge (1893) 157 Mass. 561. Exclusion for non-vaccination during danger of epidemic, even though certificate presented showing unfitness for vaccination, not wrongful.Hammond v. Hyde Park (1907) 195 Mass. 29, 80 N. E. 650. Although hearing usually necessary to lawful exclusion, hearing not necessary in case of affliction with head lice,-Carr v. Inhabitants of Dighton (1918) 229 Mass. 304, 118 N. E. 525, nor where exclusion is because of low grades.-Barnard v. Inhabitants of Shelburne (1913) 216 Mass. 19, 102 N. E. 1095, Ann. Cas. 1915A, 751 and note. Exclusion for absence because pupil refused to have papers corrected by a pupil assistant to the teacher, not wrongful.-Wulff v. Inhabitants of Wakefield (1915) 221 Mass. 427, 109 N. E. 358. Child excluded by teacher, must first appeal to school committee before seeking to recover from city.-Davis v. City of Boston, (1882) 133 Mass. 103. 86 The Legal Authority of the American Public School in tort serves here also to immunize the city from school torts, in the absence of statutes imposing such liability. The leading case is that of Hill v. City of Boston, in which, after a thorough review of precedents, the common-law rule is clearly announced. This rule is applied to all manner of school tort cases, the varying facts scarcely being considered, aggravated as some of the circumstances may be. The effect of the fact that the school corporation is often regarded as a distinct and separate corporate entity from the city is seen in that many cases base the non-liability of the municipality for school torts entirely or partially on this ground. Only in the case of injury resulting from a nuisance created and maintained by the misuse of property, has the city been held liable for school torts. This instance is said to be outside the common-law rule of nonliability. Only one state, Massachusetts, was found to impose school tort liability upon the municipality, and in this instance right of action is given for wrongful inadmission or exclusion of pupils from the school, and the determination of the cases arising under it swing on the question of what constitutes a wrongful exclusion. CHAPTER V The Legal Authority of the Public School as Shown by the Common Law Rule of Non-Liability of School Districts in Tort Analysis of Chapter SECTION PAGE Scope of chapter-.....................-.................-......... 50 Common-law rule of non-liability of the school corporation in tort —.............................. —.................-.......... 51 Other reasons for denial of recovery Lack of funds with which to pay damages.................... 52 Master and servant, or principal and agent relation lacking................................. —.... 53 Injury not fault of school corporation...-........;....... 54 Absence of duty owing; wrong party in suit...............55 Application of above principles.......-.........-......... 56 Injuries arising during construction and repair of school buildings...........-..........-..- 57 Injuries resulting from condition of school buildings 58 Injuries arising in the operation and maintenance of school plant....-....... -.........-...... 59 Playground injuries and those arising on school premises generally -......-...-........................ 60 Injuries arising in connection with manual training equipment...-.......... -................. 61 Injuries arising in connection with transportation of pupils................................................................ 62 Injuries arising in operation of school cafeterias....63 Injuries arising in the physical and medical care of pupils................................. 64 Torts of truant officers..... ----........-... —. 65 Libel...................-. 66 Neglect to take contractor's bond —...........-............... 67 Chapter summary................................................. 68 87 88 89 91 92, 93 94 94 96 98 100 104 105 107 108 108 110 110 111 ~50. SCOPE OF CHAPTER. We have seen that a sovereign may not be sued without its consent; that this extends to the several state governments, who, though they have occasionally consented to suit in contract, seldom allow actions against themselves in tort. We have seen this governmental immunity 88 The Legal Authority of the American Public School from tort liability extended to those municipal functions that the municipality performs as an agent of the state. But we have also noted that the school corporation is an agent of the state engaged solely in a governmental function. This chapter studies the effect of this character of the school corporation upon its tort liability, as it is almost universally found among the states. ~51. THE COMMON-LAW RULE OF NON-LIABILITY OF THE SCHOOL CORPORATION IN TORT. School districts and boards are corporate bodies, not corporations proper, but merely quasi corporations.1 They are involuntarily created by the state legislatures in the execution of constitutional mandate for the single purpose of aiding the state in performance of the governmental function of furnishing a public education.2 States are immune from involuntary tort liability under the doctrine of sovereign immunity from suit.3 This same immunity extends to protect municipal corporations in their execution of governmental functions.4 This same immunity also extends to school corporations which are, therefore, seldom held liable in tort. The common-law rule of non-liability may be stated as follows: The school corporation as a branch or an agent of the state, engaged in the execution of the governmental function of furnishing education to the public, a duty involuntarily imposed upon it by the state, is in the absence of statute to the contrary, protected to the same extent as is the sovereign state from responsibility for its own torts or those of its servants, resulting either from misfeasance or non-feasance in the execution of its public duty. Under this rule, stated in various ways, most actions in tort against school districts or boards are held in favor of the school corporations.5 1 See Chapter II. 2 See Chapters II, III, and IV. 3 Chapter IV. 4 Ibid. 5 Arizona: School Dist. No. 48 v. Rivera (1926) 30 Ariz. 1, 243 Pac. 609, 45 L. R. A. 762. Colorado: Olson Lumber Co. v. School Dist. No. 8 (1928) 83 Colo. 272, 263 Pac. 723. Illinois: Kinnare v. City of Chicago et al. (1898) 171 Ill. 332, 49 N. E. 536. Non-Liability of School Districts in Tort 89 ~52. OTHER REASONS FOR DENIAL OF RECOVERY-LACK OF FUNDS WITH WHICH TO PAY DAMAGES. Reasons other than the common-law rule have been used, either solely or in suppleIndiana: Freel v. School City of Crawfordsville (1893) 142 Ind. 21, 41 N. E. 312, 37 L. R. A. 301. Iowa: Lane v. Dist. Twp. of Woodbury (1882) 58 Iowa 462, 12 N. W. 478. Kansas: Rock Island Lumber Co. v. Elliot (1898) 59 Kan. 42, 51 Pac. 894; McGraw v. Rural Dist. No. 1 (1926) 120 Kan. 412, 243 Pac. 1038. Kentucky: Clark v. City of Nicholasville et al. (1905) 27 Ky. L. Rep. 974, 87 S. W. 300. Louisiana: Horton v. Bienville Parish (1927) 4 L. App. 123. Maryland: State ex rel. Weddle v. Bd. of School Com'rs (1902) 94 Md. 334, 51 Atl. 289. Michigan: Whitehead v. Bd. of Ed. (1905) 139 Mich. 490, 102 N. W. 1028; Daniels v. Bd. of Ed. of Grand Rapids (1916) 191 Mich. 339, 158 N. W. 23, L. R. A. 1916F, 468. Minnesota: Bank v. Brainerd School Dist. (1892) 49 Minn. 106, 51 N. W. 814; Allen v. School Dist. No. 17 (1927) 173 Minn. 5, 216 N. W. 533. Missouri: McClure v. School Dist. of Tipton (1899) 79 Mo. App. 80; Cochran v. Wilson et al. (1921) 287 Mo. 210, 229 S. W. 1050; Dick v. Bd. of Ed. of St. Louis (1922) 238 S. W. 1073; Krueger v. Bd. of Ed. of St. Louis (1925) 310 Mo. 239, 274 S. W. 811, 4 A. L. R. 1086. New Hampshire: Harris v. Salem School Dist. (1904) 72 N. H. 424, 57 Atl. 332. New York: Donovan v. Bd. of Ed. of New York City (1881) 85 N. Y. 117; Reynolds v. Bd. of Ed. of Little Falls (1898) 33 N. Y. App. Div. 88, 53 N. Y. S. 75; Wahrman v. Bd. of Ed. (1906) 111 App. Div. 345, 97 N. Y. S. 1066; Katterschinsky v. Bd. of Ed. of N. Y. City (1925) 215 App. Div. 695, 212 N. Y. S. 424. These cases indicate the rule applicable only to torts of subordinates. North Dakota: Anderson v. Bd. of Ed. of Fargo (1922) 49 N. D. 181, 190 N. W. 807. Ohio: Finch v. Bd. of Ed. (1876) 30 Ohio St. 37, 27 Am. Rep. 414; Bd. of Ed. of Cincinnati v. Volk (1905) 72 Ohio St. 469, 74 N. E. 646; Bd. of Ed. of Cincinnati v. McHenry (1922) 106 Ohio St. 357, 140 N. E. 169. Oklahoma: School Dist. No. 1 v. Wright (1927) 128 Okl. 193, 261 Pac. 953. Oregon: Wiest v. School Dist. No. 24 (1914) 68 Ore. 474, 137 Pac. 749, 49 L. R. A. (N. S.) 1026; Spencer v. School Dist. No. 1 (1927) 121 Ore. 51, 254 Pac. 357. Pennsylvania: Erie School Dist. v. Fuess (1881) 98 Pa. 600, 42 Am. Rep. 627; Ford v. School Dist. of Kendall Borough (1888) 121 Pa. 543, 15 Atl. 812, 1 L. R. A. 607 and note. Washington: Howard v. Tacoma School Dist. No. 10 (1915) 88 Wash. 167, 152 Pac. 1004,-Dist. held liable here because of statute, but contains a good discussion of the common-law rule. West Virginia: Krutili v. Bd. of Ed. (1925) 99 W. Va. 466, 129 S. E. 486. Wisconsin: Juul v. School Dist. of Manitowoc (1918) 168 Wis. 111, 169 N. W. 309, 9 A. L. R. 905; Srnka v. Joint Dist. No. 3 (1921) 174 Wis. 38, 182 N. W. 325; Sullivan v. School Dist. No. 1 (1923) 179 Wis. 502, 191 N. W. 1020. 90 The Legal Authority of the American Public School ment, to reach the conclusion of non-liability of the school corporation in tort. Thus it has been held that school districts are not liable to pay damages since the funds in their hands have been placed there for the purposes of education only; that no power is given the school corporation to raise money by taxation to pay damages in tort action; and that to allow school money to be used in such a manner, would be ruinous to the public school system.6 The line of thought employed in the Pennsylvania case of Ford v. School District of Kendall Borough7 illustrates this line of reasoning very well. "As, then, these districts can have no fund out of which to pay damages such as are claimed by the plaintiff in this case, their recovery would be to no purpose. Moreover, to make school districts responsible for the misfeasance of their officers would, in many cases, prove injurious, if not destructive, to the public welfare. A weak and poor district is saddled with a heavy bill of damages,-in this case, for instance because a child has been burned through the negligence of the janitor; in another, perhaps, because there has been no fire, and a pupil's limbs have been frozen, or because the house was open, and it has caught a cold; it has been maltreated by the teacher, or has contracted spine disease, because of improper seats, etc.,-and, as a consequence, the schools must be closed, and the ordinary taxation, perhaps for years, together with the state appropriation, must be applied to the payment of the bill. The rule heretofore has been that individual advantage must give way to the public welfare; but the proposition of the plaintiff is to make individual grievance over-ride the public good,-make the public funds the primary source of individual compensation. A child has been injured by the negligence of the school janitor; therefore stop the schools, and appropriate the money of the state and district for the purpose of compensating the child and its parents. 6 Finch v. Bd. of Ed. of Toledo (1876) 30 Ohio St. 37; 27 Am. Rep. 414; Ford v. School Dist. of Kendall Borough (1888) 121 Pa. 543, 15 Atl. 812, 1 L. R. A. 607, annotated; Freel v. School City of Crawfordsville (1895) 142 Ind. 21, 41 N. E. 312, 37 L. R. A. 301; Cochran v. Wilson et al. (1921) 287 Mo. 210, 229 S. W. 1050. 7 Supra. Non-Liability of School Districts in Tort 91 This is certainly running the idea of individual compensation to the last degree of absurdity." ~53. SAME —MASTER AND SERVANT, OR PRINCIPAL AND AGENT RELATION LACKING. A master may be liable for the torts of his servant, but if the subordinate is not a servant, so that the master has no control over his actions, the subordinate's torts cannot be imputed to the master,-unless the work contracted for is in itself inherently dangerous. This rule applies to school corporations also, and has sometimes been made the basis for denying recovery in actions against school districts or boards. Thus, where a certain piece of work not in itself dangerous, has been turned over into the hands of an independent contractor, whose actions the board cannot control or direct, the torts of these contractors cannot be imputed to the school corporation.8 "The rule seems to be this:" said the Supreme Court of Iowa stating the law as applied in that state, "Where work is contracted to be done which is not of itself dangerous, but becomes so by the negligence of the contractor, the employer is not liable for the injuries resulting therefor; but, if the work is dangerous of itself, unless guarded, and the employer makes no provision in his contract for its being guarded, and does not make a proper effort to guard it himself, then he is negligent, and cannot escape liability on the ground that the work was done by a contractor." Upon the same matter, it was said in a Pennsylvania case, "Where the purpose of the contractor is lawful, and the owner of the property lawfully commits its improvement to others, if the owner employs a contractor to do the work and the latter is guilty of negligence in doing it, the contractor and not the employer is liable. A person is not liable for the acts of another, unless the relation of master and servant or principal and agent exists between them. When an injury is done by a party exercising an independent employment, the party employing him is not responsible to the person injured."10 8 Denver School Dist. No. 1 v. Kennedy (1925) 77 Colo. 429, 236 Pac. 1012. 9 Wood v. Indep. Dist. of Mitchell (1876) 44 Iowa 27. 10 Erie School Dist. v. Fuess (1881) 98 Pa. 600, 42 Am. Rep. 627. 92 The Legal Authority of the American Public School It has also been held that a master-servant relationship did not exist between the board of education of New York City and the employees of the ward trustees of that city, and that therefore the city board of education could not be held responsible for the torts of such employees. Nor did the relation of principal and agent exist between the board of education and the ward trustees. "It is conceded," said the court, "that the repairs which were being done when the accident occurred, were ordered by the trustees of the ward. The trustees employed the workmen. The board of education neither employed them, nor has any power to control or discharge them. The workmenand anitor were selected and hired by the ward trustees, and were paid out of the public funds. The board of education was not the master, and it cannot be held liable within the rule of respondeat superior. The ward trustees were public officers, with powers prescribed by the statute, and were not agents of the board of education to employ workmen or otherwise.",l Likewise, although a board of education was required by statute to appoint a truant officer, such an official was held to be an independent state officer, for whose negligent infliction of injury upon a truant boy, the board of education was not responsible.12 A master is not liable for the torts of his servant which do not come within the scope of his employment. This principle applies to the relationship between the school corporation and its servants also, and where a truant officer caused the death of a child who was not a truant and, therefore, not within the jurisdiction of the officer, the board of education could not be held.13 ~54. SAME-INJURY NOT FAULT OF SCHOOL CORPORATION. Where the action is to recover damages for an injury resulting from negligence, the negligence of the school corporation must have been the proximate cause of the injury. Even though it be granted that the board was negligent, if that negligence 11 Donovan v. Bd. of Ed. of City of N. Y. (1881) 85 N. Y. 117. 12 Rhall v. New York Bd. of Ed. (1899) 40 N. Y. App. Div. 412, 57 N. Y. S. 977 (partial reason). 13 Reynolds v. Bd. of Ed. of Little Falls (1898) 33 N. Y. App. Div. 88, 53 N. Y. S. 75. Non-Liability of School Districts in Tort 93 be not the real, reasonably direct cause of the injury, the school corporation will not be liable.14 Thus though it might be conceded that a board of education was at fault in preparing and prescribing a course of study in chemistry, if an injury results from an unauthorized experiment, the omission of the board is not the proximate cause of the injury, and the school corporation cannot be held in damages therefor.'1 Also, if the real cause of an injury be the acts of a fellow servant, an injured employee cannot hold the school corporation responsible in damages.'6 So where it is sought to attach liability to the school corporation under some legal doctrine like that of the turntable cases-attractive nuisance-it must be proved to be such a nuisance in fact or the action will of course fail.17 ~55. SAME-ABSENCE OF DUTY OWING; WRONG PARTY IN SUIT. No action may be taken against a school corporation for damages for an injury by one to whom such corporation has owed no duty. Thus a school corporation need not put itself out to guard the safety of trespassers or one not at least standing in the position of an invitee.18 Such a one coming upon the school premises must accept obvious dangers as he finds them, and cannot look to the school corporation for recompense if he is injured. If an action against a school corporation for damages for an injury is to succeed, such action must be brought by the party injured. Thus if a child is injured the father cannot bring action to have himself recompensed unless he himself 14 Johnson v. Bd. of Ed. of Hudson (1924) 210 N. Y. App. Div. 723, 206 N. Y. S. 610 15 Gregory v. Bd. of Ed. of Rochester (1927) (N. Y. App. Div.) 225 N. Y. S. 679. 16 Higbie v. Bd. of Ed. of N. Y. City (1907) 122 N. Y. App. Div. 483, 107 N. Y. S. 168. 17 Heva v. Seattle School Dist. No. 1 (1920) 110 Wash. 668, 188 Pac. 776. "The turntable doctrine makes the owner liable because the dangerous agency is attractive to children of tender years, and in playing about or with such agency accident or injury would probably result. It must be an agency such as is likely to, or will probably, result in injury to those attracted to it."-Barnhart v. C. M. & St. P. Ry. Co. (1916) 89 Wash. 304, 154 Pac. 441. 18 Basmajian v. Bd. of Ed. of N. Y. City (1924) 122 Misc. Rep. 530, 204 N. Y. S. 263; Johnson v. Bd. of Ed. of Hudson (1924) 210 N. Y. App. Div. 723, 206 N. Y. S. 610; Smith v. Seattle School Dist. No. 1 (1920) 112 Wash. 64, 191 Pac. 858. 94 The Legal Authority of the American Public School has been pecuniarily damaged. The action must be brought by the child, or at least by the parent for the child. This is true because usually, as in the case of exclusion, it is the child that has suffered the injury. Loss of services, however, is sufficient to allow a parent to maintain the suit.19 ~56. APPLICATION OF ABOVE PRINCIPLES. The commonlaw rule of non-liability is applied in more or less of a blanket fashion with little regard as to the instant state of facts. Some attempt has been made to make a governmental and corporate division of school functions in the manner employed in determining the tort liability of municipal corporations but evidently with little success. All the work in connection with schools is usually held governmental, and the non-liability held to arise directly from the corporate character and status of the corporation. Hence, in regard to cases determined by the common-law rule, any attempt at classification must necessarily be an arbitrary one. As for the other principles mentioned the case is, of course, different because their application with the exception of the lack-of-funds argument is entirely dependent upon the state of facts present. ~57. SAME —INJURIES ARISING DURING CONSTRUCTION AND REPAIR OF SCHOOL BUILDINGS. When a workman was injured during the erection and roofing of a school building in Chicago, both the city and the board of education were held not liable. As to the city, the workman was declared to be a servant of the state, and the negligence resulting in the injury to him that of the board of education. The board was held not liable by the application of the common-law rule.20 The making of repairs upon a school house is declared a public function, and so by application of the common-law rule a school city was not held for the injury of a workman so employed, although it was admitted by demurrer21 that the injury was caused by 19 The same is true as to actions against teachers or board members individually, so the following citations are to such cases also: Stephenson v. Hall (1852) 14 Barb. (N. Y.) 222; Donahue v. Richards et al. (1854) 38 Me. 376; Boyd v. Blaisdell (1860) 15 Ind. 73; Sorrels v. Matthews (1907) 129 Ga. 319, 58 S. E. 819, 13 L. R. A. 357; Douglas v. Campbell (1909) 89 Ark. 254, 116 S. W. 211, 20 L. R. A. (N. S.) 205. 20 Kinnare v. City of Chicago (1898) 171 Ill. 332, 49 N. E. 536. 21 An allegation that although the complaints made are true, yet no cause of action is stated. Cyc. Law Diet. Non-Liability of School Districts in Tort 95 the negligence of the officers of the school corporation.22 The argument that there were no funds to be applied to payment of damages was also used. The erection of a school building was held a sovereign function in McGraw v. Rural High School District in Kansas, and although the judge delivering the opinion did not think highly of the common-law rule, he nevertheless applied it in sustaining the demurrer of the district.23 A workman who was injured while engaged in painting a school building in the city of Detroit, Michigan declared that the school corporation, through its agents owed the plaintiff a direct duty to furnish him a safe place in or on which to perform his work, and also to furnish him with reasonably safe tools and implements. But by application of the commonlaw rule a demurrer was sustained.24 An Erie, Pennsylvania school district employed a contractor to make certain improvements upon a school building under the direction of a superintendent chosen by the district. Although it was expressly agreed that the work was not to commence till after school had dismissed, by permission of the superintendent, the work was begun before that time, and a child was injured by the negligence of the contractor. It was held that despite the fact that permission had been given by the superintendent, and the fact that two board members had seen the work under way and had not stopped it, the negligence was that of an independent contractor and the school corporation was not liable.26 An excavation for a school building in the city of Cincinnati was made to such an excessive depth that nearby buildings were injured. Besides the common-law rule and the lack-offunds argument the old ultra vires argument was used to absolve the school corporation from liability. The court said that "the board is not authorized to commit a tort-to be careless or negligent-and when it commits a wrong or a tort, it does 22 Freel v. School City of Crawfordsville (1895) 142 Ind. 21, 41 N. E. 312, 37 L. R. A. 301. 23 (1926) 120 Kan. 412, 243 Pac. 1038. 24 Whitehead v. Bd. of Ed. (1905) 139 Mich. 490, 102 N. W. 1028. The case of Ferris v. Bd. of Ed. of Detroit (1899) 122 Mich. 315, 81 N. W. 98, was distinguished. 26 Erie School Dist. v. Fuess (1881) 98 Pa. 600, 42 Am. Rep. 627. 96 The Legal Authority of the American Public School not in that respect represent the district, and for its negligence or tort in any form the board cannot make the district liable."26 ~58. SAME - INJURIES RESULTING FROM CONDITION OF SCHOOL BUILDING. Lightning struck an Iowa schoolhouse and injured a pupil therein, who then brought suit against the district to recover damages for his injury. It was contended that the district was negligent in not adequately providing the building with lightning rods, and for allowing the rods present to become broken and out of repair.27 The question for determination was stated thus by the judge rendering the opinion, "Is a school district liable for personal injuries sustained on account of the negligent construction of its school house, or negligence in failing to keep it in repair?" In answering this question in the negative, by the application of the common-law rule of non-liability, a comparison was made with the non-liability of a county in tort, resulting in the conclusion that the school district came even more fully under the general rule of non-liability. Low bannisters or stair railings seem a rather prolific cause of school accidents. A little girl fell over low bannisters in the town of Nicholasville, Kentucky and sustained permanent injuries. Others had fallen over these same railings previously, that the school officers knew, but no charges had been made. But recovery was not allowed; from neither the city nor from the school corporation. The reason given for the holding was as follows: "The duty of providing public education at the public expense by building and maintaining school houses, and conducting public schools therein is purely a public or governmental duty, in the discharge of which school districts act, as the representatives of the state, and are exempt from corporate liability for the improper construction of the houses, or want of repair, or the wrongs of the servants employed."28 The same result was reached in the case of a similar injury in Grand Rapids, Michigan. There a schoolhouse contained a 26 Bd. of Ed. of Cincinnati v. Volk (1905) 72 Ohio St. 469, 74 N. E. 646. This doctrine no longer obtains.-Cooley on Torts (3rd Ed.) 198. 27 Lane v. Dist. Twp. of Woodbury (1882) 58 Iowa 462, 12 N. W. 478. 28 Clark v. City of Nicholasville et al. (1905) 27 Ky. L. Rep. 974, 87 S. W. 300. Non-Liability of School Districts in Tort 97 circular stair case winding about a central open space extending through the several stories of the building. A pupil fell over a railing thirty inches in height and eighteen feet down the open space sustaining severe injuries. The board of education admitted negligence by a demurrer which was sustained thus holding the school corporation not liable.29 The commonlaw rule was given as the reason; the following statement being quoted from Shearman and Redfield on Negligence: "'The duty of providing means of education at the public expense, by building and maintaining schoolhouses, employing teachers, etc., is purely a public duty, in the discharge of which the local body, as the state's representative, is exempt from corporate liability for the faulty construction or want of repair of its school buildings, or the torts of its servants employed therein.' 1130 The construction and maintenance of a school building were held to be governmental functions, and a pupil injured in an Oregon school from the maintenance of a radiator in the school gymnasium was therefore, not allowed to recover in an action against the school corporation, the common-law rule applying.3' The incident was held not to come within the terms of a statute granting a right of action for torts in the "corporate character" and "scope of authority" of a school district.32 Two separate actions were brought against Seattle School District No. 1 in 1920 in attempt to recover damages for injuries sustained in connection with the district school buildings. In the one case an employee of a county superintendent, who as a licensee, was conducting a teachers institute in a school building, was injured as the result of the defective condition of an elevator shaft. The school district was held not liable, not because of the application of the common-law rule, but because the school district owed no duty to the county superintendent other than not to intentionally cause her injury. The employee of the county superintendent was held to stand in no better position than his employer. The plaintiff 29 Daniels v. Bd. of Ed. (1916) 191 Mich. 339, 158 N. W. 23, L. R. A. 1916F, 468. 30 Shearman & Redfield, Neg. ~267. 31 Spencer v. School Dist. No. 1 (1927) 121 Ore. 51, 254 Pac. 357. 32 See ~~73, 74, p. 118 et seq. 98 The Legal Authority of the American Public School was held to be a mere licensee, not even an invitee, since the county superintendent was not. The following was the rule quoted upon which the holding of non-liability was founded: "The general rule is, that the licensee goes upon the land at his own risk, and must take the premises as he finds them. An open hole, which is not concealed otherwise than by the darkness of night, is a danger which a licensee must avoid at his peril."33 In the second case two boys had, by climbing a nearby fence, been able to reach a fire escape by means of which they climbed to the roof of the building. In the hurry to descend, the one boy fell to the fire ladder from the roof of the building and was injured. The ladder was not defective, having been properly constructed and inspected, but the doctrine of attractive nuisance was employed by the plaintiff in an effort to recover from the school district. It was held, however, that such a fire escape did not come within the principle of the turntable cases and no recovery was therefore allowed. "Common objects," said the Washington court, "the uses and dangers of which are obvious and well known, at least to the normal child of twelve years and which cannot be made inaccessible without destroying the purpose for which they exist, may not, under the law as established in this state, be found to be attractive nuisances simply because injury from their use has occurred to a licensee or trespasser of a sufficient age and understanding to appreciate the danger."34 ~59. SAME —INJURIES ARISING IN THE OPERATION AND MAINTENANCE OF SCHOOL PLANT. An Arizona school was conducted in a building owned by a private person, the trustees having taken possession of the house and established the school therein without the consent of the owner. Through the negligence of the janitor in caring for a stove, the building was destroyed by fire. By application of the common-law rule, the school corporation was held not liable in damages-"A school district under our system of government is merely an agency of the state. Such being true, the overwhelming weight 83 Reardon v. Thompson (1889) 149 Mass. 267, 21 N. E. 369. 34 Heva v. Seattle School Dist. No. 1 (1920) 110 Wash. 668, 188 Pac. 776. Non-Liability of School Districts in Tort 99! I! I........ of authority naturally is to the effect that school districts are not liable for the negligence of the officers, agents or employees, unless such liability is imposed by statute either in express terms or by implication."35 The liability, if any, was held to be that of the trustees individually. A Wisconsin school janitor left a pail of hot water, caustic acid and chemical compounds standing in the passage-way of a school building. A pupil falling into this receptacle sustained injuries for which he brought action against the school district. But it was held by the common-law rule, that the district was not liable for this negligent act of the janitor, that no liability was imposed by the terms of a statute requiring owners of public buildings so to construct, repair, and maintain them as to render them safe, since this act of the janitor did not properly come within the meaning of the word "maintain." "It is a well-established principle in this state," said the Wisconsin court, "that a municipality, while performing the duty imposed upon it under the requirements of... our Constitution,... shall not be liable for injuries to pupils attending such school occurring by reason of the negligence of servants necessarily employed by such municipality or school district in carrying out what have been designated as the governmental duties so imposed by law upon it. Until changed by the legislature, we feel bound to follow it."36 It seems difficult, however, to comprehend what the word "maintain" might mean, if keeping floors clean does not come within it. A janitor negligently used kerosene in starting a fire in a school room stove while pupils were standing about. An explosion occurred and a pupil brought suit against the district for injuries received. Recovery was denied mainly on the ground that the school corporation had no funds with which to pay such damages and because such a policy would be ruinous to many schools, but also for the reason of the position of the district as an agent of the commonwealth.3 A man was 35 School Dist. No. 48 v. Rivera (1926) 30 Ariz. 1, 243 Pac. 609, 45 A. L. R. 762. e6 Juul v. School Dist. of Manitowoc (1918) 168 Wis. 111, 169 N. W. 309, 9 A. L. R. 905. 37 Ford v. School Dist. of Kendall Borough (1888) 121 Pa. 543, 15 Atl. 812, 1 L. R. A. 607, and note thereto. 100 The Legal Authority of the American Public School employed under the janitor of a school as a cleaner, and had his hands burned by the negligence of the janitor who furnished him with a liquid cleaning mixture in which the acid content was too strong. It was held that the board of education of the city was not liable because of the operation of the fellow servant rule. The negligence, if any, was held to be that of the janitor.38 In the Ohio case of Finch v. Board of Education of Toledo, where a suit grew out of an injury to a pupil resulting from the negligence of the board, the court said, "An examination of the nature and power of such quasi corporations furnishes a reason sufficient why the defendant is not liable." A comparison is made with municipal corporations proper showing the effect of their differences on the tort liability of the two.39 ~60. SAME-PLAYGROUND INJURIES AND THOSE ARISING ON SCHOOL PREMISES GENERALLY. A child was fatally injured when struck by the seat of a swing erected on the school playground in Fargo, North Dakota. Charging negligence against the school board, the plaintiff brought action to recover damages for the death of her child. The board was held not liable, however, in that the apparatus was installed in governmental capacity. "We think the safest rule," stated the court, "is that, where such a board is acting in a governmental capacity in the discharge of its lawful duties, and its acts are such as are within its powers as defined by law, it should be immune from all forms of actions against it, except such as are by law permitted."40 A Maryland school board allowed a wire to be stretched across a school lot in such a manner that a pupil tripped over it and was fatally injured. By application of the common-law doctrine in these words: "... it is well settled, we think, both upon principle and authority, that at the common-law no action for tort can be maintained against a quasi corporation, and, if the defendant is to be held liable in this case, it must be under the statute...", and statement that there were no 38 Higbie v. Bd. of Ed. of New York City (1907) 122 N. Y. App. Div. 483, 107 N. Y. S. 168. 39 (1876) 30 Ohio St. 37, 27 Am. Rep. 414. 40 Anderson v. Bd. of Ed. of Fargo (1922) 49 N. D. 181, 190 N. W. 807. Non-Liability of School Districts in Tort 101 funds to pay such damages, the parent was not allowed to recover for the death of his daughter.41 A pupil of a New York City school, who was injured by falling into a hole in the school yard, by reason of the janitor having negligently left the covering grating removed, brought suit against the board of education of the city to recover damages. It was held that the relation of master and servant did not exist between the board and the janitor since the latter had been employed and was under the complete control of the ward trustees. Therefore, it was held the negligence of the janitor could not be imputed to the board, the doctrine of respondeat superior not applying. Nor could the board be held for the acts of the ward trustees. These, it was said, were not agents of the board but independent public officers for whose negligence the board was not liable.42 Another and more recent New York case is of much interest. A stairwell was covered with wire mesh. Pupils had been warned not to climb upon this. At the time of the accident, there was a hole in this wire mesh, which had been there for three weeks prior to the accident and within the knowledge of the board of education. At the time of this happening, the plaintiff was a truant, yet in spite of this and in defiance of the principal's orders to be in the class-room at such hour if at school, the child climbed up the side of the stairwell covering and onto its roof, fell through the hole and was killed. Action was brought against the board of education, and in the first trial the board was held liable.43 It was held that the board's negligence in allowing the hole to remain in the covering of the stairwell was the proximate cause of the accident since the result might reasonably have been foreseen. At a second trial of the case, however, the holding was reversed.44 It was held that the fact that the child was a truant and in the school yard during school hours made him a trespasser, and so brought the case under the rules applicable thereto: "No obligation rests on an owner or occupier of realty to keep 41 State ex rel. Weddle v. Bd. of School Com'rs (1902) 94 Md. 334, 51 Atl. 289. 42 Donovan v. Bd. of Ed. of N. Y. City (1881) 85 N. Y. 117. 43Basmajian v. Bd. of Ed. of City of New York (1924) 122 Misc. Rep. 530, 204 N. Y. S. 263. 44 Same-(1925) 211 App. Div. 347, 207 N. Y. S. 298. 102 The Legal Authority of the American Public School premises safe for the benefit of trespassers, intruders, mere volunteers, or licensees coming thereon without invitation, express of implied."45 The fact that the gate to the school yard was open was not an invitation to the plaintiff to enter. Granting that the board of education was negligent in maintaining the roof of the stairwell with a hole in it, the plaintiff was also guilty of contributory negligence by playing on top of the wire mesh. It was also held that the actions of the plaintiff brought the case within the rule of voluntary assumption of risk: "It is a well settled rule that, where a person voluntarily exposes himself to danger and is injured, there is no rule of law which authorizes a recovery." So when a motortruck was driven by an agent of the school corporation across the yard of a school in St. Louis, thereby injuring a pupil, the court applied the common-law rule, and allowed no recovery against the board of education.46 Two willow stumps projected from a Minnesota school playground, over which a pupil tripped when at play, and broke his leg. Recovery was not allowed in an action against the school district by reason of the common-law doctrine. A statute 4 authorizing actions to be brought against school trustees in their official capacity was held not to change the common-law rule. It was held that the statute meant actions in contract only, and impliedly excluded actions in tort.48 A well-driller under contract with a school corporation left his machine unguarded and unlocked on the school grounds. A child was injured while playing with this machine, and action was brought against the school district. It was held that the driller was an independent contractor over whom the district had no control outside the contract and so was not liable for his negligence. The work to be performed was held not to be so inherently dangerous that its performance could not be thus delegated. It was the machine that was dangerous, and not the work. The plaintiff attempted to hold the district on the ground that the drilling machine constituted an attractive nuisance which they negligently permitted to remain on the grounds, but it was 45 Ibid. 46 Dick v. Bd. of Ed. of St. Louis (1922) 238 S. W. 1073. 47 (1878) G. S., Chap. 36 ~117. 48 Bank v. Brainerd School Dist. (1892) 49 Minn. 106, 51 N. W. 814. Non-Liability of School Districts in Tort 103 ~ B held that all tools or implements being used in a lawful work, which might be dangerous to children, could not be considered attractive nuisances.49 Much the same contentions and arguments were used in the case Denver School District No. 1 v. Kennedy, a Colorado case, in which a contractor had left a radiator standing on end on a sidewalk in a school yard. This radiator was rocked to and fro by a group of pupils, till it fell, breaking the plaintiff's leg. It was contended by the plaintiff that this constituted an attractive nuisance, and that the district was negligent in maintaining it or was responsible for the contractor's negligence. The court, however, held that the contractor was an independent one, since the district could only direct what should be done, and not the manner of its performance and, therefore, the negligence of the contractor could not be imputed to the school corporation which was for that reason not liable. A judgment against the contractor was affirmed.50 A teacher of the New York City schools was negligent in conducting athletic exercises in a school yard, resulting in an injury to a pupil. When action was brought against the board of education of the city, it was held that the rule of respondeat superior did not apply to the board in the discharge of governmental functions, and that the negligence must remain that of the teacher, and could not be imputed to the school corporation.51 The school corporation of St. Louis owned a narrow strip of land between one of its buildings and an adjoining theater. The plaintiff walking in this passageway in the dark fell down a flight of stairs maintained there by the school. It was held that "on the grounds... of its legal character alone as a quasi corporation, the board of education is not answerable in this connection for the negligence charged." The argument that no funds were available for the payment of damages was cited as another reason in support of the non-liability. Said the court: "Another equally cogent reason why the board of education cannot be required to respond to an action of the character 49 Wood v. Indep. Dist. of Mitchell (1876) 44 Iowa 27. 5o (1925) 77 Colo. 429, 236 Pac. 1012. 61 Katterschinsky v. Bd. of Ed. of N. Y. City (1925) 215 App. Div. 695, 212 N. Y. S. 424. 104 The Legal Authority of the American Public School of that at bar is the nature of the fund intrusted to its care and distribution. School funds are collected from the public to be held in trust by boards of education for a specific purpose. That purpose is education. An attempt, therefore, to otherwise apply or expend these funds is without legislative sanction and finds no favor with the courts."52 ~61. SAME - INJURIES ARISING IN CONNECTION WITH MANUAL TRAINING EQUIPMENT. A student working with a planer in a manual training department in a West Virginia school was injured because of the imperfect condition of the machine, and because of the unguarded condition of the blades. Alleging negligence, action was brought against the school board. The general rule was followed, and the school corporation declared not liable for the injury even though the board were negligent. "The general rule in this country is that a school district, municipal corporation or school board is not, in the absence of a statute imposing it, subject to liability for injuries to pupils of public schools suffered in connection with their attendance thereat, since such district, corporation or board, in maintaining schools, acts as an agent for the state, and performs a purely governmental duty imposed upon it by law for the benefit of the public, and for the performance of which it receives no profit or advantage."53 Thus in a Wisconsin case decided in 1923, it was said that, "it must be conceded that by the common law the defendant in establishing and maintaining this department is performing a purely governmental function, for which it cannot be held liable for damages sustained by a pupil resulting from the negligence of the officers, agents, and employees of the district."54 It was further contended in this case that a workmen's compensation act, that had recently been passed, abrogated the common-law rule and made the school corporation liable, in that it expressly required employers to furnish and use safety devices and safeguards to protect the employees and frequenters. But it was held that pupils could come neither 52 Cochran v. Wilson et at. (1921) 287 Mo. 210, 229 S. W. 1050. 53 Krutili v. Bd. of Ed. of Butler Dist. (1925) 99 W. Va. 466, 129 S. E. 486. 54 Sullivan v. School Dist. No. 1 (1923) 179 Wis. 502, 191 N. W. 1020. Non-Liability of School Districts in Tort 105 within the term "employee," nor the term "frequenter," and so the statute evidently was not meant to change the usual rule as to liability of a school corporation in tort.55 A buzz saw-in the manual training department of a Hudson, New York school was equipped with a hood to be used in covering the blade of the saw when in use. This hood might be swung back when the saw was not in operation. A belt ran to a pulley which operated the saw. This belt was covered on the top and on the side away from the saw, but not on the side toward the saw. A pupil who was not a manual training student used the saw without taking the precaution to swing the hood over the blade. He alleged that a stick of wood which he was engaged in sawing struck the unguarded belt which threw his hand against the blade whereby he was injured. It was held that the school corporation was not liable because it had fulfilled its duty when it provided the hood for the saw, and was not responsible for the fact that the saw was used without using the hood; that although the board was negligent in not guarding the belt on the side toward the saw, that negligence was not the proximate cause of the injury; and that at all events the corporation owned no duty to the plaintiff here since he was a stranger as far as using this saw was concerned.56 If it could have been shown here that the board was itself negligent, and that that negligence was the proximate cause of the accident and that a regular student had been using the saw, the board would have been held liable.57 ~62. SAME —INJURIES ARISING IN CONNECTION WITH TRANSPORTATION OF PUPILS. The transportation of pupils is held to be a governmental function and, therefore, by the application of the common-law rule, the school corporation is held not liable for injuries arising therefrom. This was clearly set 55 "The doctrine of non-liability of a municipality for the performance of governmental functions is so deeply rooted in our jurisprudence, and has so generally been recognized and accepted for so long a period of time, that in effect it has virtually attained the force of a statute, and, while such doctrine has been recognized for over half a century, no legislature has attempted to nullify it."-Ibid. 56 Johnson v. Bd. of Ed. of Hudson (1924) 210 N. Y. App. Div. 723, 206 N. Y. S. 610. 57 See: Herman v. Bd. of Ed. of Dist. No. 8 (1925) 234 N. Y. 196; 137 N. E. 24, affirming judgment 191 N. Y. S. 930, discussed infra p. 138 under The New York Limitation of the Common-Law Rule. 106 The Legal Authority of the American Public School forth in a New Hampshire decision. Said the court, "... the duty of the defendants to provide... transportation to and from school... was a public duty, from which the district derived no benefit or advantage, and the right of the plaintiff to be transported was one he enjoyed in common with other scholars in the district and was also public. But it has long been the recognized law of this state that an action cannot be maintained against a municipality for the infringement of such a right, in the absence of a statute making it responsible."58 It has been attempted to hold school corporations for transportation injuries by arguing that such a function is not a governmental one, but without success. Thus in a recent Oklahoma case, it was argued that the duty of selecting a competent driver of a school bus was not a governmental one, and that the board should be liable for injuries resulting from the selection of an incompetent driver. The court, however, refused to follow the reasoning of the plaintiff and held the school district not liable. "It is contended by the plaintiff," said the court, "that the furnishing of transportation is purely ministerial. With this view we cannot agree. It is as necessary to make accessible to the children of the state facilities of education as it is to furnish the facilities. The care of the lives and limbs of the pupils who must be confided to those who conduct the transportation is as necessary to be safeguarded as is the proper training of their minds in the school. We are entirely unable to follow the argument advanced that while the school board, in exercising its discretion in determining whether the pupils shall be conveyed by teams or trucks, is performing a governmental function, yet that the selection of safe, convenient and commodious conveyances and the procuring of competent and dependable drivers is merely a ministerial act. The line of distinction is too fine, and we think that the criterion should be whether or not the acts done are essential and necessary, and are intended for the purpose of carrying into effect the comprehensive educational program contemplated by the Constitution and statutes of this state, and if so, the perform 58 Harris v. Salem School Dist. (1904) 72 N. H. 424, 57 Atl. 332. Horton v. Bienville Parish (1927) 4 La. App. 123. Non-Liability of School Districts in Tort 107 ance of those tasks is a governmental function, and not a private enterprise."59 Much the same question arose in a Minnesota case which was decided in the same year.60 A child was injured by the negligent operation of a school bus. The plaintiff rested his arguments upon the contention that a recent statute which read in part: "An action may be brought against any school district... for any injury to the rights of the plaintiff arising from some act or omission of such board..."61 The court, however, avoided this apparently conclusive argument by construing the statute as giving the right of action only when the injury resulted when the school corporation was acting in proprietary capacity, and so since transportation of pupils was a governmental function, the common-law rule would apply removing the school district's responsibility.62 ~63. SAME —INJURIES ARISING IN THE OPERATION OF SCHOOL CAFETERIAS. The school board of the city of St. Louis operated a lunchroom in connection with a high school. The plaintiff was employed therein, and was engaged in cleaning a food-chopping machine. Personal injuries were sustained when the machine was suddenly set in motion. The plaintiff acknowledged that there was no cause of action against a school corporation for injuries resulting from the performance of a governmental function, but contended that the operation of a lunchroom was not such a function. A governmental function, she contended, was one imposed by law but the operation of a school cafeteria was not so imposed, but was merely a thing authorized or permitted by the law and was more in the nature of a special, voluntary and self-imposed duty. Therefore, she reasoned, the common-law rule did not apply. The court, however, refused to follow this reasoning, declared the operation and decision to operate a lunchroom a governmental function, and applied the general rule of non-liability.63 59 School Dist. No. 1 v. Wright (1927) 128 Okl. 193, 261 Pac. 953. 60 Allen v. School Dist. No. 17 (1927) 173 Minn. 5, 216 N. W. 533. 51 G. S. 1923, ~3098. 62 See Chapter VI, following, for further discussion of statutory construction, and the New York limitation of the common law rule. 63 Krueger v. Bd. of Ed. of St. Louis (1925) 310 Mo. 239, 274 S. W. 811, 4 A. L. R. 1086. 108 The Legal Authority of the American Public School ~64. SAME - INJURIES ARISING IN THE PHYSICAL AND MEDICAL CARE OF PUPILS. A school dentist was employed by the board of education of Cincinnati. A pupil was required to submit to treatment by this dentist who through negligence and incompetency fractured the plaintiff's jaw. Action was brought for the recovery of damages against the board of education, charging it with negligence in selecting such an incompetent and negligent person to act in capacity of school dentist. But by reason of the general rule of non-liability in the performance of a governmental function, the case, though held for the plaintiff in an inferior court, was decided in favor of the board of education.64 ~65. SAME-TORTS OF TRUANT OFFICERS. A truant officer in endeavoring to apprehend a truant physically injured him for which action was brought against the board of education.65 The plaintiff predicated his right of action upon the contention that the officer was an agent or employee of the board, and that the rule of respondeat superior therefore applied. The court, however, held that the necessary master and servant relationship did not exist, the rule of respondeat superior did not apply, and the board could not be held for the negligence of the truant officer. Said the New York court: "We are of opinion that the rule sought to be invoked has no application to the facts presented, and that it does not apply to the relations existing between the board of education and the attendance officer appointed under the statute referred to. That rule only applies when the employer has the power to select his servants, to discharge them if not competent or skillful or well-behaved, to prescribe their duties, and to direct and control them while in his employ. The defendant in appointing the attendance officer,... did not do so voluntarily but in obedience to the positive command of the state, as expressed in the statute, and, after the appointment Lock's duties were prescribed by the statute, and not by the defendant. He was therefore not a 64 Bd. of Ed. of City of Cincinnati v. McHenry (1922) 106 Ohio St. 357, 140 N. E. 169. 65 Rhall v. New York City Bd. of Ed. (1899) 40 N. Y. App. Div. 412, 57 N. Y. S. 977. Non-Liability of School Districts in Tort 109...... ~ I I servant of the defendant, but an officer of the state, in which the defendant had no private interest, and from which it derived no special benefit whatever. It is well settled that where a municipal corporation itself has no private interest, and from which it derives no special benefit or advantage in its corporate capacity such officer cannot be regarded as the servant or agent of the municipality for whose negligence or want of skill it can be held liable."66 In a second New York truant case, the facts were somewhat different. The child was in the presence of his father, and was absent from school with the parent's permission. The officer knew of this fact, and yet attempted to arrest the child. The child broke away from the officer, who, despite the express command of the father, pursued the child who in his attempt to escape ran onto a railway track and was killed by an approaching train. It was attempted to impute the responsibility for this occurrence to the board of education by the argument that the truant officer was an agent or employee of the board, for whose actions it was responsible.67 Here, as in the Rhall case above, it was pointed out that the officer was appointed through statutory mandate, which statute also governed the officer's duties, though the board might control his action to some extent. Therefore, it was held, the rule of respondeat superior would not apply. But it was further contended by the plaintiff that, the board itself was negligent in appointing such a careless and incompetent person as an attendance officer. This the court acknowledged to be a more serious contention, but, nevertheless, held in favor of the board of education, stating that in this matter the board was engaged in the exercise of a governmental function and could not be held even for its own negligence. At all events the court held, the officer in trying to arrest in this manner a child who was not even a truant, was so far outside the scope of his authority as to amount to engaging in a criminal act, for which the school corporation could, of course, not be held responsible. 66 Ibid. 67 Reynolds v. Bd. of Ed. of Little Falls (1898) 33 N. Y. App. Div. 88, 53 N. Y. S. 75. 110 The Legal Authority of the American Public School ~66. SAME-LIBEL. A school board held a meeting at which they considered the dismissal of a teacher on the grounds of immoral conduct. Upon a resolution being passed for dismissal, the following was entered on the record: "It was moved and duly seconded that W. A. W...- be dismissed as teacher in the public schools of district No. 24, Marion County, Oregon, for immoral conduct and behavior unbecoming a teacher with one L.-.-..B D..- B........, which motion being placed before the board received the affirmative vote and was by the chair declared carried, and the chair declared said W. A. W. duly dismissed as a teacher..." The teacher brought an action against the school district alleging that this defamatory matter was false and that the board, nevertheless, had maliciously published it. He claimed thereby to have been injured in his reputation and in his good name and credit as a teacher for which injury he sought recovery in damages. The school corporation admitted the truth of the teacher's statements by demurrer, but relied upon its position in the common law to absolve it from liability. In this the school district was upheld.68 By quotation the court said the district was not liable for any kind of torts of the members of the board, and also referring to the fact that there were no funds available to pay such damages, concluded: "We do not believe that it was the intent or is the policy of our law to take the funds intended for the education of the young and apply it to payment for any malicious act of its officers. It is carrying the doctrine of imputed tort too far to hold that, because the directors or clerk of the district have published a libel or spread it upon the record of the district, the district itself is a malicious libeler." ~67. SAME-NEGLECT TO TAKE CONTRACTOR'S BOND. Statutes frequently require that a school corporation entering into any contract for the construction or repair of a school building, or for furnishing of material or labor for such a purpose, shall take a bond from the contractors guaranteeing that the contract be faithfully executed, and that all those furnishing either material or labor to the contractor shall be duly paid. 68 Wiest v. School Dist. No. 24 (1914) 68 Ore. 474, 137 Pac. 749, 49 L. R. A. (N. S.) 1026, annotated. Non-Liability of School Districts in Tort ill The purpose of this is to make sure that the work will be well performed, but also to protect the school corporation from suits of materialmen or laborers in case the contractor refuses to pay them or becomes insolvent. Neglect to take such a contractor's bond when required by statute has been held a tort by the Colorado Supreme Court.69 In that case the bond had not been taken as required by statute and a lumber company suffering a loss in consequence thereof brought an action against the school district to recover for the value of the material furnished the contractor who had failed to pay. But the court refused recovery, saying that a school district was not liable for its torts unless made so by statute. In a similar earlier Kansas case, action was again brought by a lumber company.70 There too the school corporation was absolved from liability. Johnson, Judge, delivering the opinion, said that, "While the statute specifically requires a public officer to take the bond, it does not provide that the neglect of an officer to perform the duty so enjoined, raises a liability against the public corporation for which he acts. A quasi-municipal corporation, like a school board, is never liable for the consequences of a breach of public duty, or the neglect or wrong of its officers, unless there is an express statute imposing the liability." In general the question of liability for neglect to require a bond of contractors devolves about the various statutes and the question as to whether or not such failure to take the bond constitutes a tort.7' ~68. CHAPTER SUMMARY. Since a sovereign may not be sued without its consent, and since school corporations are branches or agents of the sovereign states, engaged in the performance of a governmental function, the immunity of the state extends to its agents. Usually, therefore, actions in tort against school corporations fail under the following commonlaw rule: The school corporation as a branch or an agent of the state engaged in the execution of the governmental function of 69 Olson Lumber Co. v. School Dist. No. 8 (1928) 83 Colo. 272, 263 Pac. 723. 70 Rock Island Lumber & Mfg. Co. v. Elliot (1898) 59 Kan. 42, 51 Kan. 894. 71 See statutory provisions, infra, p. 146. 112 The Legal Authority of the American Public School furnishing education to the public, a duty involuntarily imposed upon it by the state, is in the absence of statute to the contrary, protected to the same extent, as is the sovereign state, from the responsibility for its own torts or those of its servants, resulting either from misfeasance or non-feasance in the execution of its public duty. But recovery may also be denied in a suit against a school corporation for any of the following additional reasons: lack of funds with which to pay damages; failure of the rule of respondeat superior through lack of relation of master and servant, or principal and agent; the injury not being the fault of the school corporation; absence of a duty owing the injured party by the school corporation; and the fact that the suit is brought by a parent instead of a child when it is the latter that is injured. The common-law rule is applied to all manner of cases with little or no regard to the facts in any particular case, and is employed in nearly every state of the union. The use of the other grounds mentioned is determined by the facts of any given case. CHAPTER VI Variations and Exceptions to the General Rule of Non-Liability of School Corporations in Tort Analysis of Chapter SECTION PAGE Scope of chapter........................................................ 69 113 Evidences of the beginning of a break with the old rule of non-liability of school districts in tort............... 70 114 The Minnesota statute and its construction................... 71 115 The Oregon statute and its application................... 72 117 Early construction of the statute,....... --- —-—..... 73 118 Reversals in construction and application................... 74 120 The latest application of the Oregon statute.................. 75 123 The Washington statutes and their construction and application..................................... 76 124 The Washington limiting statute of 1917................... 77 126 The application of the new limiting statute to cases in the courts at the time of its passage............ 78 127 Construction and application of the Washington statutes since the passage of the 1917 limiting act.. 79 129 The permissive statutes of California................................... 80 133 Construction of the California statutes in the leading case of Ahern v. Livermore Union High School District.813............................................................. 81 134 Application of the California statutes in general..... 82 135 The New York Rule of liability of public school corporations in tort...-..... —......... —..........-.. - 83 138 The development of the New York Rule....................... 84 139 The New York Rule in its latest applications......... 85 143 The Michigan "nuisance" case............................ 86 145 Cases arising out of neglect to take contractors' bonds....87 146 Chapter summary...................-.... — 88 147 ~69. SCOPE OF CHAPTER. The preceding chapter set forth in full discussion the general rule of non-liability of school corporations in actions based on tort. It was seen that practically all of the states followed that common-law rule. We are here to make a study of the relatively few exceptions to the almost universally applied principle of non-liability. It will also be pointed out that nearly all of the cases allowing actions 114 The Legal Authority of the American Public School against school districts are of a comparatively recent date and that this is evidence of a new tendency to hold school corporations responsible for tortious matters. Since this tendency is one of vital concern to school administrators and taxpayers alike, the new development is discussed in its entirety and is treated by states. ~70. EVIDENCES OF THE BEGINNING OF A BREAK WITH THE OLD RULE OF NON-LIABILITY OF SCHOOL DISTRICTS IN TORT. So uniform and complete has been the application of the common-law rule of non-liability of school districts for tort, that in only five states out of the twenty-three in which the question has directly arisen before courts of record, have any decisions allowed recovery. These five states are California, Michigan, New York, Oregon, and Washington.' However, it is interesting and especially significant to note that those cases which have broken with the old law of non-liability are all comparatively recent decisions. Significant, too, is the fact that although based on permissive statutes, every case dealing with this subject which was handed down by the courts of record in 1930 and in the first seven months of 1931 granted damages to the injured persons and against the school districts. In fact we may now say with a fair degree of fidelity that there seems to be a perceptible movement toward granting at least some degree of recovery against school corporations in tort actions. Let us trace the history and development of this new movement. In the following pages there is set forth a complete account of this new tendency in all the aspects and instances in which the matter has entered judicial records. This movement should be of vital interest to the administrators and the supporters of our public school system. For this reason the material here set forth has been carefully documented so that it may safely be used as an authoritative reference. The old common-law rule is not based upon statute, but solely upon previously determined cases. Legislative enactments take precedence over such common principles, which are This is excluding the matter of recoveries allowed against school districts where loss has been sustained through school boards' neglect to take contractors' bonds. This is discussed later. The single Michigan case is a decided exception to the rule usually applied in that state as will be shown later. Exceptions to the Rule of Non-Liability 115 pertinent law, therefore, only in the absence of statutes to the contrary. A few state legislatures have passed laws which have changed to a degree or even annulled the old common-law rule of school district non-liability, and have thus allowed suits in tort to be brought against school corporations. Let us first review these statutes. ~71. THE MINNESOTA STATUTE AND ITS CONSTRUCTION. As early as 1851 the state of Minnesota has had upon its statute books a law seemingly giving the right of action against school districts both as based upon contracts and also in tort.2 In 1877 this law was expressed in the following terms: "WHAT ACTIONS MAY BE BROUGHT AGAINST TRUSTEES. An action may be brought against them in their official capacity, either upon a contract made by such officers in their official capacity, and within the scope of their authority, or for an injury to the rights of the plaintiff, arising from some act or omission of such officers or of the district. The actions authorized by this chapter may be brought by or against said trustees, upon a cause of action which accrued within the term of their predecessors, as well as within their own term of office, and when brought, may be continued by or against the successors in office of the parties whose names may, for that purpose, be submitted in the action."3 This statute is still found in the school laws of Minnesota. The provision as it appears today is stated as follows: "ACTIONS AGAINST DISTRICTS. An action may be brought against any school district, whether upon a contract made with the district or its board, in its official capacity, and within the scope of its authority, or for an injury to the rights of the plaintiff arising from some act or omission of such board, whether the members of the board making the contract, or guilty of the act or omission complained of, be still in office or not."4 It would seem very clear that when the Legislature expressly and in so many words gave a right of action against school districts "for an injury to the rights of the plaintiff 2 Chapt. 79, ~~12, 16. 3 Laws 1877, c. 79, subd. 8, ~1; Comp. Stats. 1878, ~117. 4 Mason's Minn. St., 1927, Vol. I, ~3098, p. 720. 116 The Legal Authority of the American Public School arising from some act or omission of such officers or of the district," that the liability of Minnesota school districts in tort could not be questioned. Yet strangely enough the Supreme Court of Minnesota soon arrived at the conclusion that such was not the legislative intent. A pupil playing in a school yard stumbled over a stump of a willow and fell, breaking his leg. Suit was brought against the school district in an attempt to obtain damages for this injury. The pupil's case was predicated upon the statute quoted above. This case came before the supreme court of the state in 1892 and a decision was rendered denying the injured pupil his remedy.5 The court was, no doubt, apprehensive of opening up school districts to such actions as this one, for the arguments advanced in justification for this rather surprising conclusion are singularly weak. In fact, the opinion may be summarized by stating that the court did not believe that it was the intention of the legislature to allow suits against school districts which were based upon tort. And so, although it is rather difficult to imagine what else could have been the legislative intent, this case has become an authority in Minnesota and has been the cause of impotency of the admissive statute down to the present day. In 1927 a pupil was run over by a school bus while the pupil was upon the school premises and was severely injured. This injury, declared the father, who brought a suit for his son, was caused by the negligence of the school district through its board.6 The situation, he alleged, was covered by the state law which allowed actions to be brought against school districts for injuries resulting from omissions of the districts. But the court looked back to the old Brainerd decision and made it the authority for denying recovery to the injured pupil. In other words, although the seemingly permissive law had remained all the intervening years, the case was decided in accordance with the old common-law rule of governmental non-liability. That this same position remains unchanged at the present time may be seen by the rulings in two recent cases. Mokovich v. Independent School District of Virginia, determined in 1929, 5 49 Minn. 106, 51 N. W. 814. 6 Allen v. Independent School Dist. (1928) 173 Minn. 5, 216 N. W. 533. Exceptions to the Rule of Non-Liability 117 pertains to the suit of a pupil who was injured while playing on a school football team.7 The yard lines on the gridiron had been marked by the use of unslaked lime. During the game this student had his face thrust into such a line of lime. The result was that he lost his sight in one eye and had it seriously impaired in the other. The pupil alleging that the use of such unslaked lime constituted negligence, brought an action to recover damages for his injuries from the school district. The result was the same as in previous attempts. The decision of the Brainerd case still held and the statute still remained ineffective. In the case of Bang v. Independent School District,8 a school board neglected to disinfect a school house in which a tubercular teacher had taught. The teacher who brought this action came into this school shortly after the tubercular teacher left. Not long thereafter this second teacher discovered that she had contracted the disease and brought suit against the district. But as in all preceding cases of this kind recovery was denied. We have, then, in the case of Minnesota an instance in which it seems quite evident that the legislature originally intended that the strict old common-law should not apply to school districts, but a case, also, in which judicial interpretation has made such an intention, if there was one, entirely inoperative. ~72. THE OREGON STATUTE AND ITS APPLICATION. The situation in the state of Oregon has been somewhat similar to that in Minnesota, save for the fact that in one late instance recovery has been allowed. A statute quite similar to the Minnesota law has been upon the books in Oregon for a long period of time. Before the year 1877 this enactment appeared in the following form: "An action may be maintained against a county or other of the public corporations mentioned or described in section 346, either upon a contract made by such county or other public corporation in its corporate character, and within the scope of 7 Mokovich v. Independent School Dist. of Virginia (1929) 177 Minn. 446, 225 N. W. 292. 8 Bang v. Independent School Dist. (1929) 177 Minn. 454, 225 N. W. 449. 118 The Legal Authority of the American Public School its authority, or for an injury to the rights of the plaintiff, arising from some act or omission of such county, or other public corporation."9 But in 1887, this statute was amended by the insertion of the clause "in its corporate character, and within the scope of its authority" in the second half of the law as well as in the first half, so that the pertinent part of the law as it now stands reads thus: "An action may be maintained against any of the... public corporations of this state mentioned in section 357 in its corporate character and within the scope of its authority, for an injury to the rights of the plaintiff arising from some act or omission of such other public corporation."10 That school corporations are included in this section is seen by a perusal of section 357, mentioned above, where we find them specifically mentioned thus: "any county, incorporated town, school district, or other public corporation of like character in this state.... Y Since by this statute it seems that actions may be taken against school districts under the amended statute only for torts arising in a district's "corporate character," and "within the scope of its authority," it has become vital to determine which functions of a school district are corporate, as opposed to governmental, and which functions are and are not within the scope of the district's authority. For torts in relation to governmental functions and those outside the district's scope of authority there seems to be no right of action granted. ~73. SAME - EARLY CONSTRUCTION OF THE STATUTE. These distinctions were used in a very peculiar way upon the first occasion in which the question arose. An Oregon school board decided to dismiss a teacher. The conclusions of a meeting called to consider the matter were formally entered upon the board's record in these words: "It was moved and duly seconded that W. A. Wiest be dismissed as teacher in the public schools of District No. 24, Marion County, Oregon, for immoral conduct and behavior unbecoming a teacher with one Laura 9 Code Civ. Proc., Deady & Lane Gen. Laws, ~347. (Italics inserted). 10 Laws 1887, p. 45; Oregon Laws 358. (Italics inserted.) 11 Oregon Laws, ~357. Exceptions to the Rule of Non-Liability 119 DeBard, which motion being placed before the board received the affirmative vote and was by the chair declared carried, and the chair declared said W. A. Wiest duly dismissed as a teacher in the school...." Now the dismissed teacher declared that these accusations were false and that they were actuated by malice, and sought to recover damages from the school district. The board, unable to prove the charges, admitted by demurrer that the statements were false. Although a private person making such false charges would have been held liable, the Supreme Court of Oregon to which the case was appealed, sustained the demurrer, and released the board from liability.12 The interesting point in the case to us here is that one of the reasons why the recovery was not allowed against the district, as advanced by the court, was that the board was not authorized to commit a tort, to be careless or negligent; that when a board commits a wrong or tort, it does not in that respect represent the district; and, that, therefore, for such a tort the district itself may not be held! In a fashion, then, here was a matter outside the scope of the authority of the board which was acting for the district. A very significant line of reasoning, one might well say, for a school district being a corporation must always act through its board and if the district is not to be held for the wrongs of the board, it is impossible that the district ever could be held for any tort in any sort of capacity-governmental or corporate. In the next case in which this question arose, the above line of reasoning was not used, but the distinction between a district's corporate and governmental functions was made. Spencer v. School District No. 1, was determined in 1927.13 In this case a pupil had been injured by a radiator which, it was alleged, had been negligently placed in a gymnasium in a school. "The determination of the question in the case," said Justice Bean of the Oregon court, "depends upon whether the school district, in the maintenance of its school building was acting in its proprietary or corporate character or in a public governmental capacity." If the duties of the school in relation 12 Wiest v. School Dist. No. 24 (1914) 68 Ore. 474, 137 Pac. 749, 49 L. R. A. (N. S.) 1026. 13 121 Ore. 51, 254 Pac. 357. 120 The Legal Authority of the American Public School to maintenance of buildings, under which head providing heating would come, were to be regarded as corporate, then the district could be held liable under the statute mentioned above; if, however, such functions of the district were to be regarded as governmental, then there would be no such liability. The latter position is the one which the court took, thereby denying recovery against the district. But what is more significant, the court stated that it was probable that not only the maintenance of buildings, but all work of the school was governmental. "A school district under our statute," said the court, "is merely an arm of the state, for the administration of its school system. In the construction and accoutrements, if not in all matters, it functions as an agency of the state and not in a private or proprietary capacity."14 We can note now that if the principles laid down in these two cases were to have been followed strictly, any intention the legislature might have had of allowing suits in tort against school districts would have been avoided. This conclusion would be inevitable for, by the Wiest case it was held that although a school district could only act through its board, any wrong of the board might not be imputed to the district, and by the Spencer case the implication was that it was probable that all functions of school districts were governmental, action being allowed only for torts in a district's corporate capacity. But these principles have not been completely followed and judicial dissatisfaction has been clearly expressed concerning the situation. ~74. SAME-REVERSALS IN CONSTRUCTION AND APPLICATION. In a case decided shortly after the Spencer case, the Supreme Court of Oregon arrived at a practical reversal of its former position. A painter had been engaged in painting a flag pole in a school yard in Portland. A block had been hoisted to the top of the pole by means of a flag rope which ran through a pulley at the top of the pole. The painter had been hoisted about thirty feet from the ground when the flag rope had parted, allowing the laborer to fall to the ground, where he had been struck and seriously injured by the block which had fallen from the top of the pole. Relying upon the Oregon statute, the 14 Ibid. (Italics inserted.) Exceptions to the Rule of Non-Liability 121 injured man brought suit against the school district.15 Justice Bean, who wrote the opinion in the Spencer case, said that in this instance, as in that former one, the district's liability depended upon whether the district in maintaining the school buildings and premises was acting in a proprietary and corporate character, or in a public governmental capacity. But now, although he had so shortly before indicated his belief in the probability that all the work of a school was governmental, he expresses the opinion of the court that in the matter of painting a flag pole a school district is acting in a corporate and ministerial capacity, and allows the injured laborer to bring his action against the school district, thus exposing the district to liability. To one reading the Oregon cases in immediate sequence, it seems quite evident that the court has become dissatisfied with the almost total exclusion of remedy to persons injured by torts of school districts, and is seeking with as much dignity as possible under the circumstances, to open the way for such suits in certain cases. In its reasoning to attain this end an analogy is drawn to the decision of a case in municipal law, a suit against the city of Portland by one injured in connection with the repair of a fire alarm.16 It was pointed out that although a city as respects its fire department is acting as an agent of the state in the performance of a governmental function (much in the same way as a school district acts for the state in relation to the governmental function of providing public education), nevertheless, the repair of a fire alarm is a ministerial function and therefore a city is open to liability for injuries caused by the fault of the municipality in that respect. In this same way, contended the court, a school district, although it usually acts in a governmental fashion, in respect to such a thing as the painting of a flag pole, is acting in a ministerial fashion, and is open to suit. "The plaintiff was employed by the officers of the school district in the discharge of a legal duty," said the court, "that of painting and maintaining a flag pole. It was a case of common employment for the performance of a special service for 15 Lupke v. School Dist. No. 1 (1929) 275 Pac. 686. 16 Wagner v. Portland, 40 Ore. 389, 60 Pac. 986. 122 The Legal Authority of the American Public School the school district. The officers and employees of the district in the performance of such act were not in the exercise of a governmental or public function, but the work of painting the flag pole was an act ministerial in its nature, and if there was negligence, as alleged in the complaint, the district is liable therefor." "A school district acting by its officers in exercising its discretion," the court went on, explaining the difference between a governmental and a ministerial act, "and adopting a plan, or deciding whether it will purchase or maintain a certain school building, would be exercising a public or governmental function. When a school district has ordered the erection, or repair, of a structure, and is engaged in the prosecution of the work, its duty becomes ministerial. When judicial or governmental duty ceases, a ministerial duty begins, and immunity ceases and liability attaches." Thus, then, the Supreme Court of Oregon changes its position as to the general attitude shown in the case of Spencer v. School District No. 1, which it had decided only two years before, and indicates that the work of school districts may be recognized as being of two kinds-governmental and judicialdiscretionary on the one hand, in relation to which the district cannot be sued; and ministerial, proprietary and corporate, on the other hand, in relation to which school districts can in Oregon be sued under the statutes. How, then, one might well ask, does the court justify its decision in the Spencer case, where it refused to allow a suit against a school district for injuries caused by an allegedly negligently placed and maintained radiator, when here in this case, action is allowed against a district for injuries resulting from a negligently maintained flag pole? What can be the difference between the two situations? How to attain this justification was evidently a rather puzzling matter, but the court attempted it, in the following words: "We have quoted the statement of the question involved in the case of Spencer v. School District No. 1, which still seems correct, to the effect that it depended upon whether the school district was acting in its proprietary corporate character, or in a public governmental capacity. The discussion in that case, Exceptions to the Rule of Non-Liability 123 sustaining the demurrer to the complaint, couched in very general language, was a holding that in the act described the district was not acting in its corporate capacity. In that case it was alleged that the school district permitted to be kept in hallway of the school gymnasium, which it operated, an iron radiator. It was not shown by the complaint that the school district owned or placed the radiator, or even took charge of it. For aught shown in the pleading, it may have been placed by pupils, or an independent contractor. Using common parlance, it was not averred that the district ever took the radiator under its wing, or used it in any way. We think that case, which we have examined from the record, differs from the one at hand. We believe that the general statement [of non-liability made in that case] should be qualified so as to be to the effect that, in performing duties imposed upon a school district by the statute, 'it is immune from an action for... negligence,' except when acting in its corporate capacity in the performance of a ministerial duty." In other words, the only difference between the flag pole case and the radiator case, was, according to the court, that in the latter case the injured pupil did not go through the formality of stating that the radiator in the school building was placed and owned by the school district! ~75. SAME - THE LATEST APPLICATION OF THE OREGON STATUTE. After the decision last discussed, one might very reasonably expect that as to injuries resulting from the mechanical and physical details, the ministerial acts of operating the public school plant, an injured person would experience little or no difficulty in maintaining a suit. Yet within a few months when the case of Antin v. Union High School District,17 came before this same court, a decision was rendered which is as difficult to reconcile with the more or less decisive opinion in the flag pole case, as the flag pole case itself was difficult to reconcile with the decision in the radiator case. In this latest Oregon case a water pressure tank had been negligently installed and maintained without a proper safety device. This tank burst, fatally injuring a pupil. The school district admitted its negligence by a demurrer. Again the 17 (1929) 280 Pac. 664. 124 The Legal Authority of the American Public School decision swung on the question as to whether the maintenance and operation of the water tank were a governmental or a ministerial act. And now in face of the flag pole and radiator matters, the court decided that the maintenance and operation of the water tank constituted a governmental act and absolved the district from liability for the pupil's death. Said the court: "... the maintenance and operation of the water tank which exploded and caused the death of the decedent was not the performance of a ministerial duty, for which the school district would be liable. Irrespective of what may be the rule in its application to a city or town, when acting in its private or proprietary capacity, or when acting ministerially in the performance of some official duty, the rule ought not to be applied to a school district. It acts wholly as a governmental agency when performing the duties imposed upon it by statute." This looks a great deal like a second reversal of attitude. Whether it is or not, later cases will show. The whole matter of the history of the Oregon liability statute and the cases arising in its construction show a state of confusion and vacillation in the minds of the state's supreme bench members. But this history also shows a clear tendency, not seen during the many early years when this same statute was on the Oregon law books, to consider very seriously the matter of granting the right of suit against school districts and to allow such liability in certain cases. ~76. THE WASHINGTON STATUTES AND THEIR CONSTRUCTION AND APPLICATION. Since early days there has been among the statutes of Washington a law which came to form a basis for actions against school districts in tort. As it now stands, this statute is couched in terms almost identical with those of the Oregon law previous to that law's 1887 amendment. "An action may be maintained against a county, or other of the public corporations mentioned or described in the preceding section [in which school districts are expressly mentioned], either upon a contract made by such county or other public corporation in its corporate character, and within the scope of its authority, or for an injury to the rights of the plaintiff Exceptions to the Rule of Non-Liability 125 I I I [.......... arising from some act or omission of such county or other public corporation."'s Standing alone, this statute clearly grants a right of action against school districts both in contract and in non-contractual matters. Before 1917 it constituted the clearest illustration of such a right granted by legislative enactment. This was recognized by Washington's Supreme Court and under it that tribunal allowed a number of recoveries against school corporations. The court was first called upon to interpret this statute in 1907.19 A bucket of water had been allowed to stand upon a register in the middle of a school room, until scaldingly hot. This bucket was overturned by a pupil of the school, who was thereby very seriously injured. In allowing recovery to the child, the court did not attempt to avoid the clear import of the act, but stated that the statute directly removed the governmental immunity and granted to such an injured person the right of action. "With the inapplicable portions of the two sections omitted," said Justice Dunbar, "the law would read as follows: 'An action may be maintained against a school district for any injury to the rights of the plaintiff arising from some act or omission of such district.' It seems to us that this statute is scarcely susceptible of construction. The complaint in this case shows that there was an injury to the right of the plaintiff, and that it arose from an act of negligence and omission of duty on the part of the agents of the school district. It was the right of the plaintiff presumably to attend school in the building in which she was injured, and she had a right to the reasonable protection of her person while attending such school. This right, it seems under the allegations of the complaint, was violated, and she was thereby deprived of it. The school district had a duty to perform. This duty was imposed by statute." "It is contended by the [district] that it was not the intention of the Legislature to make the act aforesaid apply to gov18 Remington's Compiled Stats., 1922, ~~951,950; Ballinger's Code, 1910, ~~950, 951, p. 611; Laws 1869, ~601, p. 154; Code, 1881, ~661. 19 Redfield v. School Dist. No. 3, 48 Wash. 85, 92 Pac. 770. 126 The Legal Authority of the American Public School ernmental duties, and that the acts complained of were in the performance of strictly governmental duties. The school district is a creature of the statute, and the state is not limited in its authority over the district, and would have the power to make it responsible in the performance of governmental duties as well as any other kind of duties. If the acts complained of were perpetrated in the performance of a governmental duty, it would be difficult to conceive what duties the Legislature had in mind when enacting the statute. It is more probable that in contemplation of the common-law rule, it was attempting to make the district responsible generally for an omission of duty." So clearly and lucidly stated was the attitude of the court upon this question, that it was not until in 1915 that the matter again reached the highest court of the state of Washington. But in that year there arose a case in which the facts were as follows: In the basement of a school building, there was maintained a piece of play apparatus consisting of a vertical ladder leading to a horizontal one several feet above a concrete floor upon which no protecting mats had been placed. A six year old pupil climbed to the horizontal ladder and fell to the floor, sustaining a broken arm. The injured pupil brought a suit for damages against the district, maintaining that the negligence of the district was the cause of his injury.20 The question of the district's negligence was not raised, the main point at issue being that of the district's liability under the statute. Following its previous decision in the 1907 case just discussed, the court granted recovery to the pupil against the district. It was pointed out, however, that the erection and the maintenance of such a piece of play apparatus was a governmental function of the district, and if the statute had not expressly granted the right of action in such a case, the old rule of governmental immunity in tort actions would have protected the district. ~77. THE WASHINGTON LIMITING STATUTE OF 1917. During the next few years a veritable epidemic of similar cases arose throughout the state. School districts called upon to pay heavy damages began to complain. The 1917 session of the 20 Howard v. Tacoma School Dist. No. 10 (1915) 88 Wash. 167, 152 Pac. 1004, Ann. Cas. 1917 D. 792. Exceptions to the Rule of Non-Liability 127 state legislature paid heed to these complaints and sought to limit the liability of school districts. Unlike the method employed in Oregon, where, it will be remembered, the introduction of the clause "in its corporate capacity and within the scope of its authority" was used as a means of limiting the liability of school districts, the Washington legislature determined to achieve this result by a method less likely to lead to confusion. A statute was passed expressly exempting the district from liability in certain express kinds of cases. This act which is now in active operation, is here quoted: "No action shall be brought or maintained against any school district or its officers for any non-contractual acts or omission of such district, its agents, officers or employees, relating to any park, playground or field house, athletic apparatus or appliance, or manual training equipment, whether situated in or about any schoolhouse or elsewhere, owned, operated or maintained by such school district."2' Under this statute no question can arise as to whether certain cases have arisen relating to governmental or corporate or ministerial functions of the districts. Here, if a given case falls within any of the expressly stated groups mentioned in this limiting statute, then the district's non-liability is unquestioned. ~78. THE APPLICATION OF THE NEW LIMITING STATUTE TO CASES IN THE COURTS AT THE TIME OF ITS PASSAGE. At the time of the passage of this act, however, trouble was experienced as to the application of the new limitations upon cases already in the lower courts. At the time when the above provision went into effect, five such actions were in the process of litigation. Judgment in a lower court had been had on four of these cases, but not on the fifth. The settlement of the question of the application of the new statute upon these cases does not concern us here particularly, so we shall not go into detail, but it may be worth mere mention. It was contended by the districts being sued in these cases, that the passage of the limiting act was a bar to the prosecution of the cases any further. As to the case in which no judgment had been ren 21 Remington's Comp. Stats., 1922, ~4706, p. 703. 128 The Legal Authority of the American Public School dered, this objection was sustained.22 There an injury had been sustained while a child was using certain playground apparatus and so came within the terms of the new statute. An objection that the application of the statute to a pending action was unconstitutional was not sustained on the grounds that the maintenance of such an action was not a vested property right, but a privilege which might be limited or removed at the will of the legislature. The right of action against a school district is a privilege and not a right because of the same old governmental non-liability theory which withholds entirely the right of action in most states. The judgments in three of the four other cases had been rendered in favor of the injured parties, and the appeals were being made by the school corporations. In each of these cases it was decided that by the judgment the injured persons had received a right which thus became vested, and that the new statute would not operate to destroy this right.23 But in the fourth case, the judgment of the lower court had been for the district, and the injured person was making the appeal. A distinction was drawn here, and it was held that since in this case, unlike the three just mentioned, the injured person was "prosecuting" the appeal, he was "maintaining" an action against the school district within one of the prohibitions of the new statute, and was therefore held to be barred from further action.24 The plaintiff not having received the judgment was losing no vested right. In the three cases to which the new limiting statute was held not to apply, the final determination turned upon such questions as those of establishing the negligence of the districts; whether the negligence, if any, really was the cause of the injury; and whether the injured persons had themselves been negligent. In Bruenn v. North Yakima School District No. 7,25 an injured child was granted recovery. The pupil had been hurt 22 Bailey v. School Dist. No. 49 (1919) 108 Wash. 533, 185 Pac. 810. 23 Bruenn v. North Yakima School Dist. No. 7 (1918) 101 Wash. 374, 172 Pac. 569; Kelly v. School Dist. No. 11 (1918) 102 Wash. 343, 173 Pac. 333; Holt v. School Dist. No. 7 (1918) 102 Wash. 442, 173 Pac. 335. 24 Foley v. Pierce County Dist. No. 10 (1918) 102 Wash. 50, 172 Pac. 819. 25 Op. Cit. Exceptions to the Rule of Non-Liability 129 on a teeter. The cause of this injury, the court declared, was the lack of adequate supervision of the playground, and hence evidence of negligence on the part of the district. The injury complained of in a second of these three cases, Kelly v. School District No. 11, was caused by the worn condition of the ring supporting a swing, and this was held to show negligence on the part of the district. The pupil was therefore granted recovery.6 In the third case, Holt v. School District No. 7,27 the injury was sustained by a pupil's falling from the top of a slide on a school playground. Such a piece of playground equipment was inherently dangerous, it was held, and the fact that such young children were allowed to use it showed negligence on the part of the district. The lower court judgment for the injured child was therefore upheld. It is interesting to note that all of these cases would have been barred had the new statute been held to apply to them. They also illustrate how frequent may be the causes of action against school districts where such suits are unrestricted. ~79. CONSTRUCTION AND APPLICATION OF THE WASHINGTON STATUTES SINCE THE PASSAGE OF THE 1917 LIMITING ACT. One would suppose that all cases involving the tort liability of school districts in Washington coming before the courts since the passage of the 1917 limiting statute would concern themselves mainly with the question: does the given case come within or outside of the limitations of the 1917 act? This has been the case with several of the cases determined since that time, but, as will be presently pointed out, one case ignores that question in a very significant fashion indicating that it will perhaps become the policy of the Washington court not to apply the limiting statute too closely. In 1920, a pupil injured on a circular saw in a manual training department brought suit against a school district.28 It was recognized that this injury came directly within one of the matters upon which the school district was by the 1917 limiting statute exempt from liability. But the plaintiff sought to contest this statute by attacking its constitutionality. The 26 Op. Cit. 27 Op. Cit. 28 Swanson v. School Dist. No. 15, (1920) 109 Wash. 652, 187 Pac. 386. 130 The Legal Authority of the American Public School court, however, refused to sustain this attack, and denied him his recovery. In the same year the case, Stovall v. Toppenish School District No. 49,29 was appealed for supreme court adjudication. A large water tank had been removed from the basement of a school building and left upon the playground. Pupils pushed and rolled this tank about, and one of the pupils fell beneath the rolling tank and was injured. In the suit which was subsequently brought against the school district, one of the main questions which arose was that of whether the matter came within the school district's exemptions. It was held that the tank did not constitute playground apparatus within the immunity of the statute. Then answering two other contentions the court granted recovery to the injured pupil, saying: "The [district] makes two other contentions: One that the pupil was pushed off the tank by another boy, and that this circumstance would constitute an intervening cause, and that the negligence of the district was not the approximate cause; and the other that the school district did not have sufficient notice [of the dangerous tank being upon the schoolgrounds]. Neither of these contentions are meritorious. The injury complained of was a reasonable and probable result of the negligence of the district in permitting the tank to remain upon the playground. The fact that the [pupil] may have been pushed off the tank, if it be a fact, would not constitute an intervening agency between the original wrong and the injury. The intervention of a third person does not preclude a recovery, if the injury was the natural and probable result of the original wrong." In Rice v. School District No. 302, determined in 1926, another school district was held liable.30 A parent-teachers association meeting had been held in a schoolhouse upon which occasion, a radio program constituted a part of the entertainment. A temporary aerial had been strung from the schoolhouse to a tree, but above an electric transmission cable. During the night the aerial fell so that in the morning it hung over the cable and to the ground in the school yard. The prin 29 (1920) 110 Wash. 97, 188 Pac. 12, 9 A.L.R. 908. 30 140 Wash. 189, 248 Pac. 388. Exceptions to the Rule of Non-Liability 131 cipal, who had helped string the wire, was supposed to have been supervising the school yard that morning, but allowed the live wire to remain. A pupil playing with the wire was burned, and brought suit against the school district. The 1917 statute was evidently regarded as not applicable to the case, for it was not considered. The fact that the grounds were not properly supervised was held to show negligence on the part of the district, and in holding the district liable, the court refused to be swayed by the objection that the pupil had himself been guilty of contributory negligence. Said the court: "Nor can we agree with another argument presented on behalf of the appellant that it should be held as a matter of law that the contributory negligence of the injured boy bars his right to recover damages. He was eleven years of age and in the fourth grade at the time he was injured. He testified that he did not know there was any danger in the wire." In its attitude upon this matter of contributory negligence the court was merely applying the usual rule that only that degree of care is required of a child, that could reasonably be expected from a child of that age and experience. Upon two more occasions has the Supreme Court of Washington held school districts liable for actions for damages. Both of these cases are very recent, being determined in 1931.31 The writer regards the position taken in one of these as especially significant for it seems to indicate that the court is applying a very liberal construction of the 1917 limiting statute. In this case, Morris v. Union High School District, the facts were as follows: Without the knowledge or consent of his father, a seventeen year old boy had been induced by a high school football coach to train for participation in that game. In a practice the boy received injuries to his back and spine. This occurred on September 7, 1928. On the twenty-first of the same month the coach again induced the lad to play. Since the boy had not fully recovered from his former injuries, his back and spine were seriously affected, and, according to the allegation, later developed into a tubercular condition, necessitating a number of major operations. Now it will be re 31 Morris v. Union High School Dist., 294 Pac. 998; Phillips v. Hardgrove, 296 Pac. 559. 132 The Legal Authority of the American Public School membered that the statute of 1917 stated that, "No action shall be brought or maintained against any school district for any non-contractual acts or omissions of such district, its agents, officers or employees relating to any park, playground, or field house..." Although it would seem that it would be a very pertinent question, and not one too easy to decide, whether the acts complained of in this case would come within the exemptions given in this statute, this question is not even referred to in the main opinion of the court. Instead the majority opinion concerns itself wholly with the Washington law as it stood prior to the passage of the limiting act in 1917, and ignored the 1917 act. Justice Main, delivering the majority opinion, held the district liable in these words: "If the school district is liable where a teacher in supervision of the playgrounds permits a child to use a dangerous instrumentality, or fails to exercise reasonable care to prevent such use, [referring to the former teeter and live wire cases] then it would seem to necessarily follow that if the school district organized and maintained a football team and one of its teachers, with the knowledge and consent of the board of directors, acted as a coach and trainer thereof, and if the coach knew that a student in the school was physically unable to play football, or in the exercise of reasonable care should have known it, but nevertheless permitted, persuaded and coerced such student to play, with the result that he sustained injuries, the district would be liable." One of the judges dissented to this opinion on the ground that the effect of the 1917 statute had not been determined. Said he: "This is a most far-reaching decision in its future effect." In the latest case decided by the Washington court,32 a school district was held liable for the negligence of a school bus driver who opened the door of the vehicle and allowed a pupil to get out while another car was approaching, thus causing the pupil fatal injuries when she was struck by the passing automobile. It was held that the same degree of care is to be required from the driver of a school bus as that required of the driver of a regular passenger vehicle. 32 Phillips v. Hardgrove, Op. Cit. Exceptions to the Rule of Non-Liability 133 In conclusion we can say that, despite the limiting statute of 1917, the state of Washington allows actions against her school districts in tort to a degree equalled by only two other states. The courts of Washington tend to construe the statutes much more liberally in favor of injured parties than is done in Oregon. ~80. THE PERMISSIVE STATUTES OF CALIFORNIA. During the 1923 session of the legislative assembly of the State of California, there were passed two acts dealing with the tort liability of the school districts of that state. The one of these acts was an amendment of Section 1623 of an existent provision of the Political Code. As amended, and as it now stands, this section is as follows: "Board of school trustees, high school boards, junior college boards and boards of education are liable as much in the name of the district for salary due any teacher on contract, and for all debts contracted under the provisions of this chapter, and for any judgment against the district on account of injury to any pupil arising because of the negligence of the district or its officers or employees and they must pay any judgment for debts, liabilities or damages out of the school funds to the credit of such district, subject to the limitation on the use of said funds fixed in the constitution of the State of California... 33 A second section of this same statute contains a provision releasing school board members personally from liability for accidental injuries to school children. Act 5619 was the second act passed at this same 1923 legislative session. It is now found in these words: "Counties, municipalities and school districts shall be liable for injuries to persons and property resulting from the dangerous and defective condition of public streets, highways, buildings, grounds, works and property in all cases where the governing and managing board of all such county, municipality, school district, or other board, officer or other person having authority to remedy such condition, had knowledge or notice of the defective or dangerous condition of any such 33 Sess. Laws, 1923, p. 298. (Italics inserted.) 134 The Legal Authority of the American Public School street, highway, building, grounds, works, or property and failed or neglected, for a reasonable time after acquiring such knowledge or receiving such notice, to remedy such condition or failed and neglected for a reasonable time after acquiring such knowledge or receiving such notice to take any such action as may be reasonably necessary to protect the public against such dangerous or defective condition."34 It will be seen that Section 1623 grants a much broader right of action than does Act 5619. The latter pertains only to defective condition of property, and only injuries arising from a failure or neglect to remedy a known defective condition. Section 1623, on the other hand, grants the right of action for all injuries arising from neglect, either on the part of the board, or its employees, and the matter of knowledge or notice to the board does not enter. Which of these two acts, both passed at the same time, govern actions against school districts? That is a very vital question, and one which soon came before the Supreme Court of California in the case of Ahern v. Livermore Union High School District.35 ~81. CONSTRUCTION OF THE CALIFORNIA STATUTES IN THE LEADING CASE OF AHERN V. LIVERMORE UNION HIGH SCHOOL DISTRICT. In this case a student in a high school manual training department lost two fingers of his right hand while operating a power saw. Suit was brought against the school district upon the claim that since the boy had not been given sufficient instruction in the operation of the machine, the injury was attributable to the negligence of the district. This allegation was upheld by the jury in the trial court and was not disturbed in the supreme court. The boy was likewise not found guilty of contributory negligence. The case therefore came to rest squarely upon the question as to whether the statute granted the right of action in a case such as this. It was the contention of the school district that Act 5619 (which required knowledge of and neglect to remedy on the part of the district) controlled the situation, and since the school board itself had no knowledge of the fact that a boy not properly instructed was being allowed to operate a danger 34 Sess. Laws, 1923, p. 675. Act. 5619. 35 (1930) 208 Cal. 770, 284 Pac. 1105. Exceptions to the Rule of Non-Liability 135 ous machine, no suit could be brought against it. The injured pupil, however, maintained that Section 1623 governed the matter, and since that section allowed suits for the negligence of the employees of the district, he was within his rights in bringing the suit. The majority of the court supported the contention of the plaintiff and allowed the boy to recover. These two acts should not be read together, said the court. The one, Act 5619, is a general law dealing only partly with school districts, and the other one is an enactment expressly passed to allow actions for negligence against school districts. "In such a case," said the majority opinion, "the provisions of the special act must prevail over the terms of the general statute." It is worthy of note, however, that the court was divided four to three on the matter. Justice Preston voicing the dissent stated that, "It is an innovation to have an action of this kind allowed at all, and I do not think the Legislature for a moment intended to give a broader right of recovery than provided by Act 5619." Regardless of this dissent, however, the decision in the Ahern Case has not been since disturbed. ~82. APPLICATION OF THE CALIFORNIA STATUTES IN GENERAL. Beside the Ahern Case, which we have just considered, the question of the right of suit against school districts in California, has, at this writing, arisen in four other instances.36 Two of these cases were earlier than the Ahern Case and two were determined at a later date. In none of them, however, was the matter of right of suit as sharply questioned as in the Ahern Case. Huff v. Compton City Grammar School District, was determined in 1928, before the decision of the Ahern Case.37 This case was determined upon the basis of Act 5619, and did not concern itself with Section 1623. There was maintained upon a school ground an incinerator constructed from an ordinary garbage can. Holes had been punched therein so as to facilitate the burning of waste paper and trash. At 1:15 o'clock on the day of the accident the school janitor had placed within the 36 See also the fifth case, Strauch v. San Mateo Junior College Dist. (1930) 286 Pac. 173, where this question arose in connection with electric heaters ordered by a school district clerk, but neither paid for nor returned. 37 267 Pac. 918. 136 The Legal Authority of the American Public School incinerator an amount of trash and paper. He watched this burn for about five minutes and until the flames died down. At about three o'clock a nine year old girl came to the ash pile upon which the incinerator stood, to obtain a piece of glass to be used in a hopscotch game. As she stooped about three feet from the incinerator a burst of flames from the holes in the can ignited her dress and she was badly burned. This injury, it was maintained, was the fault of the school district through its maintenance of such a dangerous thing as an incinerator of this sort upon a school ground where children played. The case was thereby rested upon Act 5619. But, contended the school district, Act 5619 necessitates that the school board have knowledge of the dangerous thing and then neglect to remedy the condition. This was answered by the statement that it is presumed that the board had sufficient notice through its agent, the superintendent, since the incinerator had been maintained in the same place for many months. The actions of the injured child, it was held, did not constitute contributory negligence on her part. The district was therefore held liable. In Dawson v. Tulare Union High School, also determined before the Ahern Case, the facts were these:38 A piano in a high school was kept standing upon a "dolly," a low frame under which rollers were attached, a device used to facilitate moving the piano about. The instrument was very insecure upon this frame and rocked to and fro when moved and when used. The jarring of a gymnasium floor during the progress of a jumping game caused the piano to fall from the frame and crush a girl's ankle. A year before this the piano had fallen upon and injured a boy, but no effort had been made to remedy the matter. An action was brought against the district based upon Act 5619 with the claim that the dolly, with the piano insecurely standing upon it, constituted a "dangerous device" and a "defective condition" which the district had been negligent in allowing to remain. Again, as might be guessed, the defense of the district was that the board did not have the notice and knowledge of the condition, necessary to liability under the statute. 38 (1929) 276 Pac. 424. Exceptions to the Rule of Non-Liability 137 This defense the court answered by referring to the Incinerator Case which we have just discussed. "In a similar case," said the court, "it was held by this court that a school district is liable for injuries to a pupil, caused by the maintenance of a dangerous condition of which the district superintendent has notice and which he neglects to remedy within a reasonable time. The statute does not provide that actual notice is prerequisite to recovery in such a case. The long-continued existence of a defective condition may establish constructive notice thereof. It may be inferred from the circumstances in evidence that the principal had constructive notice of the defective condition and he certainly had 'authority to remedy such conditions.' To hold that actual notice is required in such a case would be to place a premium on indifference and neglect of duty." The district, but not the school board members personally, was held liable. The first case determined by a California court of record after the Ahern Case was that of Damgaard v. Oakland High School District.39 In this case the question of the construction of the two conflicting statutes was considered as finally settled. The case, however, was determined in favor of the school district for the reason that the suing party failed to make out a sufficient case. A pupil doing work in a chemistry laboratory class lost an eye through an explosion. He received a judgment of $15,000 and his parents $387 in the trial court. This judgment, however, was reversed by the appellate court on the grounds that it was not shown how his injury was the direct result of negligence on the part of the school. The latest case, at the present writing, upon the question of the tort liability of school districts in California is that of Maede v. Oakland High School District.40 A high school boy was a member of a class in oxyacetylene welding. He was directed to work with an oxygen tank upon which, by the mistake of an instructor, a weak gauge was placed. This gauge blew out resulting in the loss of one of the pupil's eyes. An action was brought against the school district and again the suit was based upon the general statute (Act 5619) and not 39 (1930) 290 Pac. 1047. 40 (1930) 191 Pac. 874, and its second consideration, (1931) 298 Pac. 987. 138 The Legal Authority of the American Public School upon the one specifically giving the right of suit for any negligence (Section 1623). Again the defense of the district was that it had no notice of the defective condition such as is necessary by the general statute in order to allow a suit against school districts. And again this defense was declared of no avail for the reason that the specific law (Section 1623) calls for no such notice to the board, but grants the right of action for an injury caused by the negligence of the employees of the district or the district board itself. In the first appearance of this suit $35,000 was awarded to the pupil, but upon a later rehearing this was reduced to $16,000. In concluding this discussion of the tort liability of California school districts we can say that this state stands in the position of allowing the broadest and most complete right of suit against school corporations. In fact, under Section 1623 of the California Laws, school districts stand practically on the same footing as do private corporations, or private individuals. In the State of California, therefore, the old common-law rule has been entirely abrogated by statute. This stand which the California Legislature has taken will cost the people of that state a good deal of money. In recognition of this fact and in partial provision against it, an act was passed during the 1931 legislative assembly granting school districts the power to insure themselves against this sort of loss.41 Such protection is now being widely carried in that state. ~83. THE NEW YORK RULE OF LIABILITY OF PUBLIC SCHOOL CORPORATIONS IN TORT. We have now discussed the status of the liability of school districts in non-contractual suits for enactments bearing upon the question. In a very few instances damages in those few states in which there are legislative recovery has been allowed in such suits even though there have not been statutes granting such a right. In other words, on a very few limited occasions the old common-law rule of non-liability has been directly broken with, and a common-law position taken allowing recovery without regard to statute. But in only one state has this position been consistently taken. That is in the State of New York. There in recent years a firm line of cases has arisen following a principle which we may 4: Sess. Laws, 1931, Chapt. 1167, 1168; Senate Bills No. 52, 53. Exceptions to the Rule of Non-Liability 139 now be justified in terming the New York Rule. This rule may be stated thus: School corporations in New York State will be held liable for injuries resulting from the wrongful or negligent acts of the school corporation itself through its board, though not for the acts or omissions of the employees of the school corporation. It will be seen that this is a distinct, though limited, break with the common-law rule which denies the right of suit altogether. ~84. THE DEVELOPMENT OF THE NEW YORK RULE. The establishment of this rule had its beginnings in the early case of Bassett v. Fish, adjudicated in 1877.42 A teacher had been injured by stepping into a hole negligently allowed to remain in a school-room floor. The action was brought against the school trustees individually, so that the question of the liability of the school corporation itself did not come up directly. However, the court in its comment, gave a hint of what was later to become the New York Rule. It was in 1906 that the rule was first definitely stated and used as a basis upon which to predicate a decision holding a school district liable to damages. In Wharman v. Board of Education,4 a pupil had suffered a fractured skull when plaster fell upon him from the ceiling of a schoolroom. The school district, trying to avoid liability, argued that the school board itself had not been guilty of negligence, but that if there was negligence, it was that of the agents of the district who had not made the proper repairs. If this point had been sustained there would have been no liability on the part of the district, since the torts of the subordinates of the board, under the position of the New York Courts, cannot be imputed to the corporation itself. But the court did not sustain this contention. The school board itself had been negligent, it was said, since it was a wrong of the corporation itself to have allowed such a room to have been used for school purposes. That decision lay only on the board itself. "The board is given the management and control of the public school of the city," said the opinion in the case. "While the power to repair and keep in suitable condition is given to other officers, the power to close schools seems to be 4212 Hun. (N. Y.) 209, (1878) 75 N. Y. 303. 43 111 App. Div. 345, 97 N. Y. S. 1066; affirmed 1907, 80 N. E. 192. 140 The Legal Authority of the American Public School vested solely in the board and, consequently, if there is any negligence with reference to such closing, it must be that of the board." The school corporation was therefore held liable. In 1912 the board of education of the City of New York was held responsible for the wrongful taking and using of property, certain heating apparatus. "It is urged," said the court, "that the board of education is not liable for the torts of its subordinates. It is unnecessary to consider that question. The evidence shows that the board of education, as such, participated in the appropriation of the property claimed by the plaintiff, and for such act, if wrongful, the board was subject to suit."44 In the same year the question was determined in the same way in another case.45 A rotted flag pole fell from the top of a school building and struck and killed a man on the street below. Said Justice Laughlin of the appellate court that rendered the decision: "I am of the opinion... that the complaint states a good cause of action against the board of education. If it erected or maintained this flag pole, which was unfit for the purpose in that it was rotten and never should have been selected for such use, in a position to endanger the lives of those lawfully in the vicinity of the building, with notice that it was in an unsafe condition, it is clearly liable either upon the theory of having erected or maintained a nuisance, depending upon whether the original erection was unsafe, or the flag pole was maintained with actual knowledge that it was in a dangerous condition, or upon the theory of negligence, depending upon its failure to perform its statutory duty to provide for 'prompt and efficient' repairs." Here not only was the power given to the board of education to determine whether or not the school building should be used, but with respect to the construction, alterations and repairs, and for its own negligence, at least, it is clearly liable. Not until 1920, did the question again arise. Then a boy was injured because of a defective springboard in a school gymnasium and an action was brought against the school board of 44 Titusville Iron Co. v. City of New York (1912) 207 N. Y. 203, 100 N. E. 806. 45McCarton v. City of New York (1912) 149 App. Div. 516, 133 N. Y. S. 939. Exceptions to the Rule of Non-Liability 141 the City of New York.46 The board tried to avoid liability by the objection that in maintaining the gymnasium and springboard it was exercising a governmental function and therefore the complaint should be dismissed. In denying this contention and holding the board liable the court said: "... The board of education is to be held liable in this case upon the following grounds: By permitting the community center to use the gymnasium and apparatus for a community use, there was an invitation to those who availed themselves of the privileges to come upon the premises and use the apparatus. The plaintiff was on the premises as an invitee, and not as a mere licensee. The duty, therefore, rested upon the board of education to use reasonable care to keep the premises and appliances in a safe and suitable condition, so that invitees would not be unnecessarily and unreasonably exposed to danger. It was shown that this springboard had been out of repair for three or four weeks, and that such condition had been reported to the director. The duty of the board was then to remove this defective apparatus, and not leave it in the gymnasium, or to take some means of notifying the invitees of its dangerous condition and prohibit its use." In 1924 the clear break that the courts of the State of New York had made with the common-law rule of non-liability was stated in express words and the general position of allowing actions against school districts for the torts of the school boards was taken so definitely and unequivocally that this date might be stated as that of the commitment of New York State to the new rule. This clear and definite stand was taken in two cases particularly, though two other cases were also decided in the same year. The first is a transportation case.47 A board of trustees had contracted with a farm woman to haul pupils to school in a farm spring wagon, the wheels of which were unguarded. A child fell or was pushed over a small seat-rail unto one of the moving wheels. One of the child's legs was wound around the hub, and the driver did not become aware of what was happening until a motorist coming up from be46 Kelly v. Bd. of Educ. of N. Y. City (1920) 191 App. Div. 251, 180 N. Y. S. 796. 47 Williams v. Board of Trustees of Dist. No. 1, 210 App. Div. 161, 205 N. Y. S. 742. 142 The Legal Authority of the American Public School hind warned her. The board attempted to avoid liability by pointing to the common-law rule of non-liability. But the court refusing to follow that old rule, announced the new rule which was now becoming firmly established. The district declared that this was directly contrary to the position taken in all other states. To this the court replied: "We fully appreciate the far-reaching effect the principle we have stated as to the liability of school districts, may have on the matter of expense or rural education, and the particular consequences which necessarily fall on the residents and taxpayers of the district. But we deem the protection of small, helpless children from avoidable injury of still greater importance." The second 1924 case was a manual training case.48 A pupil during a regular part of his school work, sustained injuries while operating an unguarded buzz saw. The jury unanimously found the school corporation guilty of negligence in purchasing, installing, operating and permitting to be used under its control a dangerous machine. The school district in its defense contended that such negligence did not impose liability because the board of education was a governmental agency. The Supreme Court of New York to which the case was finally appealed in 1925, disposed of the contention in these words: "The board of education is a governmental agency of the state. It is not liable for the torts of its agents. Such agents, like policemen of a city, are personally liable for their torts done in the course of their employment, but the corporation is not chargeable with their defaults. It, however, remains liable for its own negligence." "When the state surrendered to the board a portion of its sovereign power and delegated to it a duty imposed upon the state by the constitution, and it accepted the trust, it undertook to perform with fidelity the duties which the law imposed upon it. It is not immune from suit. The state has not created an irresponsible instrumentality of government and vested it with the power to put children at work at dangerous machinery which it would be a statutory offense against its laws to use in private industries." 48 Herman v. Board of Ed. of Dist. No. 8, 234 N. Y. 196, 137 N. E. 24, affirming judgment of 191 N. Y. S. 930. Exceptions to the Rule of Non-Liability 143 The New York Rule is nowhere more clearly stated than in the above words. ~85. THE NEW YORK RULE IN ITS LATEST APPLICATIONS. One of the two other 1924 cases, Johnson v. Board of Education of Hudson, was also a manual training case.49 In this case, also, a boy was injured while operating a circular saw. But the main difference in the two situations was that in this case the saw had a guard (although the boy did not use it), while in the former case no guard had been provided; and furthermore, the boy was not a member of the manual training class. These differences caused the court to declare that the school corporation was not here at fault in the boy's injury, and that the school owed no duty to a boy who was not a member of the class. This same idea that a New York school corporation owes no duty of protection toward those who are trespassers, or are wrongfully upon the school premises, was used to absolve a school district from liability in the fourth 1924 case also.50 At the back of a school building a flight of stairs lead down to a school basement by means of a stair-well. Above this stairwell there had been erected a frame covered with wire mesh. This covering was out of repair, but pupils had been ordered to stay away from it. The injured boy on the day of the accident was not attending school but was a truant. He, however, came to the school yard, climbed to the top of the wire covering, and fell through a hole in its top to the bottom of the stairwell and and was killed. "No obligation," said the court, "rests on the owner or occupier of realty to keep the premises safe for benefit of trespassers, intruders, mere volunteers, or licensees coming thereon without invitation, express or implied.... In the present case the plaintiff's intestate was not attending school on the day of the accident, but was a truant from school. He entered the school yard at about half past nine in the morning, not by invitation, express or implied, but on the contrary, in disobedience of the orders and directions of the principal of the school not to come to the school yard when 49210 N. Y. App. Div. 723, 206 N. Y. S. 610. 50 Basmajian v. Board of Ed. of City of New York, 211 App. Div. 347, 207 N. Y. S. 298. 144 The Legal Authority of the American Public School not attending school. Upon entering the school yard that morning he climbed up on top of the wire mesh structure in disobedience of the warnings of the principal." Two other points were also made. "The fact that the boy was playing on top of the wire mesh," said the court, "discloses that the plaintiff's intestate was guilty of negligence contributing to the injury which resulted in death, and it therefore bars a recovery in this action." The second point was a statement of the doctrine of voluntary assumption of risk. "It is well settled that, where a person voluntarily exposes himself to danger and is injured, there is no rule of law which authorizes a recovery." In other words the holding in this case resolves itself into a release of the school corporation from liability for the reason that no act or neglect on the part of the board of education could be regarded as the direct cause of the death of the boy. To date three more cases have been determined on this question. In 1925 a school district was held not liable when the negligence of a teacher supervising a playground caused injury to a pupil. Under the New York rule a school corporation is liable only for its own torts and not that of its employers.61 In 1927 the Board of Education of Rochester was held not liable for a pupil's injury resulting from his own unauthorized experiments in a chemistry laboratory, for no negligence of the school corporation could be held to be the cause of the accident.52 In the latest case to arise, the Board of Education of New York City was held liable in 1928 for an injury to a child who fell into a negligently guarded sidewalk ash elevator. The defective condition of the school property was held to be the result of negligence on the part of the Board in the performance of its duty.63 In conclusion we can state that the position taken by the courts of the State of New York upon the question of the liability of school corporations in tort is in reality the most pronounced break with the common-law rule of non-liability to be found in any of the states. Although an even broader 51 Katterschinsky v. Board of Ed. of City of New York, 215 App. Div. 695, 212 N. Y. S. 424. 52 Gregory v. Board of Ed. of City of Rochester, 222 App. Div. 284, 225 N. Y. S. 679. 53 Lessin v. Board of Ed. of City of New York, 247 N. Y. 503, 161 N. E. 160. Exceptions to the Rule of Non-Liability 145 degree of liability is allowed in California, the common-law rule has not there been abrogated, for the moment that the statutes would be repealed, the old rule would immediately take full effect. New York State, on the other hand, is almost irretrievably committed to at least partial liability. ~86. THE MICHIGAN "NUISANCE" CASE. The cases that have been discussed constitute the entire history of the tendency or movement to allow recovery in suits against school corporations in tort, as it has developed thus far, with the exception of a few isolated instances. The one of these is a single Michigan case which stands as the one exception to usual rule as applied in that state. The others are all cases based upon statutes requiring school boards to take contractors' bond and are, strictly speaking, not tort cases. In the law dealing with tort liability of municipal corporations, a recovery will be allowed against a city when a condition has been allowed to exist which may be termed a nuisance or a direct trespass. This doctrine was employed in the Michigan case of Ferris v. The Board of Education of Detroit where such a situation was held to impose liability on the school corporation though completely contrary to the general rule in that state."4 A schoolhouse had been built close to the property of the party who brought the suit. The roof of the schoolhouse was not equipped with a gutter. Therefore, since the projection of the roof came almost completely up to the edge of the plaintiff's property, snow and ice were precipitated unto the land and house-steps of the plaintiff. The owner of the dwelling slipped upon such ice and fell, sustaining the injuries for which suit was brought to recover damages. The trial court referred to the common-law rule and pointed out that there was no statute imposing liability and so held the school corporation not liable. But, upon appeal of the case, the plaintiff conceding that there was no liabiilty usually, contended that in this particular instance the circumstances took the case outside the general rule, since the injury was the result of a direct 54 (1899) 122 Mich. 315, 81 N. W. 98. See also: McCarton v. Board of Ed. of New York City, (1912) 149 App. Div. 516, 133 N. Y. S. 939, where this same reasoning was used to hold the board liable for the death of a man killed by the falling of a rotted flag pole from the roof of a school building. 146 The Legal Authority of the American Public School act or trespass, and that such an act would impose liability whether the act was done in the performance of a governmental function or not. By reasoning along the lines employed in discussing the tort liability of municipal corporations, the Supreme Court of Michigan upheld the plaintiff's contention. "We are satisfied," said the court, "that the counsel for the plaintiff is right in this contention. The plaintiff had the right to the exclusive use and enjoyment of his property, and the defendant had no more right to erect a building in such manner that the ice and snow would inevitably slide from the roof, and be precipitated upon the plaintiff's premises, than it would have to accumulate water upon its own premises, and then permit it to flow in a body upon his premises. It has been many times held in this court that a city has no more right to invade, or cause the invasion of, private property than an individual." "The cause of the action is not a neglect in the performance of a corporate duty rendering a public work unfit for the purposes for which intended, but the doing of a wrongful act, causing a direct injury to the person of the plaintiff, while outside the limits of the defendant's premises." As we have stated, this case is a single exception in the State of Michigan. Furthermore it is interesting to note that the reasoning in the case has been sharply criticised as having been confused with the considerations obtaining in respect to municipal corporations proper.55 ~87. CASES ARISING OUT OF NEGLECT TO TAKE CONTRACTORS' BONDS. School corporations contracting for labor or other services are usually required by statute to take a bond from such contractors to protect the school corporation from suits of materialmen or laborers whom the contractor refuses to or cannot pay. Some statutes, as those of South Dakota, provide expressly that school corporations may be sued by such materialmen or laborers, if the district or board neglects to take the required bond.56 In such cases, recovery may be al55 School Dist. No. 48 v. Rivera (1926) 30 Ariz. 1, 243 Pac. 609, 45 A. L. R. 763. 56 The following provision is the South Dakota statute requiring a contractor's bond: "In case any school corporation shall fail or neglect to require the execution of the bond provided for in the second preceding section, such Exceptions to the Rule of Non-Liability 147 lowed against the school corporation for damages in compensation of the loss sustained.57 But, it also has been held that where such liability is not expressly provided for, no action may be allowed against the school corporation, even though a statute does expressly require the taking of the bond.58 Thus also it has been held that one furnishing material after a failure on the part of a school corporation to take a bond as required by statute, was chargeable with notice that no bond had been given, and so could not hold the district.59 These cases are not, strictly speaking, cases in tort, but rather are more nearly instances of subrogation of school districts in the place of contractors in contracts for material and labor. However, it is well to keep them in mind generally when making a complete survey of allowal of recovery in tort against school corporations. ~88. CHAPTER SUMMARY. The history of suits in law that have been brought against school districts in attempts to recover damages for injuries of various kinds seems quite clearly to indicate a rather definite movement toward opening the way for recovery to at least a limited degree. But this tendency is still in its beginnings. Compared with the number of states in which school corporations are held not liable in tort, those states in which recovery is allowed even to any degree, are so few as to constitute mere exceptions. We have seen that even where statutes have been enacted seemingly designed to grant corporation shall be liable to pay any person who shall have performed labor or furnished any material that entered into the erection, alteration, repair, or improvement of such building, the value of such work or material and an action may be maintained therefor; provided, that an action brought under the provisions of this section shall be commenced within ninety days from the acceptance of the work for which the same shall be claimed."-S. Dak. School Laws (1928) Chap. 9, Art. 2, ~7617. 57 Plumbing Supply Co. v. Bd. of Ed. of Canton (1913) 32 S. D. 270, 142 N. W. 1131, on rehearing 32 S. D. 129, 142 N. W. 260; Handelan v. Smee School Dist. No. 4 (1916) 38 S. D. 29, 159 N. W. 888. Ore. School Laws (1927) ~313, subd. 2, p. 99; Northwest Steel Co. v. School Dist. No. 16 (1915) 76 Ore. 321, 148 Pac. 1134, L. R. A. 1915F 629; Ty Ty Consol. Dist. v. Cloquitt Lumber Co. (1922) 153 Ga. 529, 112 S. E. 561; Bd. of Ed. v. United Supply Co. (1926) 34 Ga. App. 581, 131 S. E. 292; Maxon v. Spokane Co. School Dist. No.34 (1892) 5 Wash. 142, 31 Pac. 462. 58 Olson Lumber Co. v. School Dist. No. 8 (1928) 83 Colo. 272, 263 Pac. 723. 59 Blanchard v. Burns (1913) 110 Ark. 515, 162 S. W. 63, 49 L. R. A. (N. S.) 1199. 148 The Legal Authority of the American Public School the right of suit in tort against school districts, the courts are loath to construe such laws to that effect. Such is completely the case in Minnesota. Such is also largely the case in Oregon. In Washington the right of such suit is clearly allowed, but only to a limited degree. The broadest degree of recovery against school corporations is allowed in the State of California, where by means of a statute, the school district is placed in this regard practically on the same plane as the private corporation or the private individual. Only in one instance has there been a definite break with the old common-law rule of nonliability, without the aid of statute. This is in the State of New York, where the principle of allowing suit against school districts for the torts of the corporation itself has become so firmly established as to warrant its being termed the New York Rule. With the exception of a single case in Michigan, in no other states have school districts been held liable in tort, since cases arising from the neglect of a school board to take contractors' bonds cannot really be termed tort cases. However, when we note the recency of most of the instances in which school corporations have been held liable, a new tendency is quite readily discernible. CHAPTER VII The Legal Authority of School Officers as Shown by Their Tort Liability in Relation to the School Board Analysis of Chapter SECTION PAGE Scope of chapter............................................................ Classification of public officers.............................................. Tort liability of legislative, judicial and executive officers Tort liability of administrative officers in general.............. Tort liability of school officers in general No liability for torts of school corporation................ No liability for torts of subordinates......................... Liabilityfor misapplication and misappropriation of funds Directors and trustees........................................ School treasurer................................................... Liability for loss of school funds............................................ Liability for neglect to take contractor's bond................... Liability to tradesmen............................................. Chapter summary................................................................ 89 90 91 92 149 149 150 151 93 152 94 154 95 96 97 98 99 100 155 156 158 159 161 162 ~89. SCOPE OF CHAPTER. The two preceding chapters dealt with the tort liability of the corporate body itself. But being a corporation, an artificiality, this legal person can not act save through its officers and members. We are here to consider the tort liability of those persons through whom and by whom the corporation acts. It is necessary, however, to precede contemplation of the liability of school officers by an inquiry into their status as public officers, since this status materially affects the extent of their authority and thereby their legal responsibility. ~90. CLASSIFICATION OF PUBLIC OFFICERS. The federal constitution divides our government into the three great branches-legislative, judicial and executive. This is reflected in each of our state constitutions. Each of these governmental departments has its set of public officers exercising the respective functions. We have, therefore, the three groups of public officers: (1) legislative officers, (2) judicial officers, and (3) executive officers. 150 The Legal Authority of the American Public School The whole group of public officers engaged in the administration and the execution of the laws are, properly speaking, executive officers, or, as they have been otherwise termed, administrative officers. The branch of the law governing these officers is called administrative law.1 Regarded in this manner, the term "administrative officers" includes not only such governmental officials as the President, the department heads, the governors, state dapartment heads and county officers, but also the members of all the numerous boards and commissions. These commissions and boards have become so numerous in the increasing complexity of our government, and have been given such increased and extended powers-powers not only executive, but judicial and legislative in their character-that there is justification in discriminating, at least for facility of treatment, between executive officers proper, i.e., governors, department heads, etc., and the members of the various boards and commissions, and the inferior public officers who usually are termed ministerial or quasi-judicial officers.2 For the purpose of this study, at least, these latter officials are termed administrative officers, and are distinguished from executive, judicial and legislative officers proper. These administrative officers, however, exercise functions and perform duties which are in their nature both executive, and judicial and legislative. ~91. TORT LIABILITY OF LEGISLATIVE, JUDICIAL AND EXECUTIVE OFFICERS PROPER. Legislators acting in their official capacity cannot be held liable in civil action.3 Public policy demands that they be free to act as they see fit in their legislative capacity without fear of suit.4 A judicial officer proper, such as a judge, is immune from civil action for his actions in his official capacity, and without regard to the actuating motives.5 This must necessarily be so by nature of his office and the dictates of public policy. But it is essential that such officer have jurisdiction over the case in hand. However, if a ministerial duty is imposed on such an 1 Wyman's Admin. Law, 23. 2 See Mechem, Public Officers, Chap. VI. 3 Mechem, Public Officers, ~644 et seq. 4 Tanner v. Stevenson (1910) 138 Ky. 578, 128 S. W. 878, 30 L. R. A. (N. S.) 200; Burch v. Bernard (1909) 107 Minn. 210; Amperse v. Winslow (1889) 75 Mich. 234. 5 Mechem, Public Officers, ~619, et seq. Legal Authority of Public School Officers 151 officer, a wrongful act or omission in that respect will make him liable to one injured thereby, since he is really not a judicial officer in the performance of that particular duty. We have seen in a preceding chapter,6 that the sovereign governments, both state and national, are not liable in tort since they cannot be sued without their consent. This immunity is reflected in the tort liability of the executive officers of the government also. Thus the president of the United States is not amenable to civil action,7 nor the cabinet officers, nor usually the state governors, nor other state officers.8 By our study of the tort liability of the school corporation, we have seen that the commissions and boards acting as agents of the state are not liable in tort.9 But sometimes certain specific duties may be required of even these officers in the execution of which they need exercise no discretion or judgment. For failure or neglect to perform such duties even these executive officers are liable to the action of one thereby injured.'0 ~92. TORT LIABILITY OF ADMINISTRATIVE OFFICERS IN GENERAL. Since these officers exercise functions legislative, judicial, executive and ministerial in their character, the work of such officers may be divided into two groups: (1) Discretionary and (2) Ministerial. Such an officer must exercise his judgment in the performance of his discretionary duties but the ministerial ones are directed by statute or a superior officer and require only execution. Since an administrative officer has some judicial functions, he is in that respect termed a quasi-judicial officer and has in the exercise of such functions a certain amount of the immunity of the judicial officer proper. So long as an administrative officer in the exercise of his quasi-judicial functions acts with honest intent, he is immune from civil liability no matter how erroneous or misguided are his decisions." But as to his liability in the performance of these discretionary duties when he 6 Ante, p. 75. 7 Marbury v. Madison (1803) 1 Cranch (U. S.) 137, 2 L. Ed. 60. 8 Mechem, Public Officers, ~~607-611. 9 Chapter VI. 10 Mechem, Public Officers, ~647. "Mechem, Public Officers, ~640. 152 The Legal Authority of the American Public School has acted from corrupt motives, maliciously, or otherwise in bad faith, the courts seem at variance. Some courts grant immunity anyway, while others hold him liable in such cases.12 But such officers must keep within their jurisdiction and if the limit set by law is exceeded, thus resulting in an injury, liability will attach.13 However, an administrative officer vested with a discretionary duty must at least act, and if injury results from refusal to act, he may be held liable. Thus it has been said: "There is a distinction... between cases where parties invested with discretionary authority exercise it to the injury of an individual, and where they neglect to exercise it at all. If the law imposes the duty, and calls for action, where such duty is imposed for the benefit of private individuals, the person neglecting the duty to the injury of an individual would be liable whether the duty involved the exercise of discretion or not."14 As to his ministerial functions, the administrative officer must keep strictly within the confines set by statute. He becomes liable for any resultant injuries if he fails to perform the required duty, if he acts negligently or if he over-steps his statutory limits. This is true although he exceeds his authority by an error that might seem justifiable and in the best of faith.15 With this preliminary discussion, we shall consider the tort liability of the school administrative officer. ~93. TORT LIABILITY OF SCHOOL OFFICERS IN GENERALNo LIABILITY FOR TORTS OF THE SCHOOL CORPORATION. A board of education like another corporation, being an intangible being, must act through its members or officers. An action by the board, as such, is therefore not the action of its officers individually. Hence, if a tort is that of the board, the members or officers are not individually liable. Thus, in a New York case repairs had not been made in a schoolhouse floor, and as a result a teacher was injured by 12 Ibid. 13 Ibid. ~641. 14 Owen v. Hill (1887) 67 Mich. 49, 34 N. W. 649. 15 Lowe v. Conroy (1904) 120 Wis. 151, 97 N. W. 942, 66 L. R. A. 907, 102 Am. St. Rep. 983; Williams v. Rivenburg (1911) 145 App. Div. 93, 129 N. Y. S. 473. Legal Authority of Public School Officers 153 stepping into a hole. Action was brought against the trustees individually.' The holding was first against the individual members, but was subsequently reversed. The court here held the school corporation a corporation proper upon which the duty rested, and not on the individual members. "... It is not seen how a member of a corporate body, upon which body a duty rests, can be held individually liable for the neglect of its duty by that body. There is no duty upon him to act individually. His duty is as a corporator, and it is to act in the corporation in the way prescribed for its action and by the use of its powers and means and if there is neglect to exert its powers or all its means, it is the neglect of the body and not of the individuals composing it." But this has not been confined to cases in which the school body has been termed a corporation proper. A South Dakota statute required the taking of a bond from contractors. A board failed to require such bond and both the board as a whole and its members individually were sued. This duty, the court declared, rested upon the board as a corporate body and the individual members were not liable.7 Thus also, in a Michigan case where a child was injured by falling over a railing which had been maintained at too low a height and where the individual board members were sued together with the board, the court said: "No statutory duty is imposed upon the members of this board individually. It is not charged that any particular one acted, or assumed to act, as an officer, agent or representative of the board, or in any different capacity from the other. They had no power and were charged with no duty except to act together in a quasi corporate capacity. The negligence which all the defendants are charged with involved malfeasance and non-feasance in their governmental duties connected with the construction and maintenance of this school house. We are impressed that if the board as such is not liable, its individual members are not liable; no individual liability is created by statute."18 16 Bassett v. Fish (1877) 12 Hun. (N. Y.) 209, (1878) 75 N. Y. 303. 17 Plumbing Supply Co. v. Bd. of Ed. of Canton (1913) 32 S. D. 270, 142 N. W. 1131. 18 Daniels v. Bd. of Ed. of Grand Rapids (1916) 191 Mich. 339, 128 154 The Legal Authority of the American Public School Thus, also, it was said in a New York case: "The members of the board as such act only as members of the corporation, and not individually. They are not the hired agents of the corporate body engaged to act in their private capacity. Their corporate character protects them from individual liability, where their official character is the opportunity or occasion of the neglect. If they neglect to discharge the duties immediately imposed upon them by law, the neglect is that of the corporate body and not of the individuals composing it."19 ~94. SAME-No LIABILITY FOR TORTS OF SUBORDINATES. When by necessity school officers employ subordinates to perform certain work for them, they are not liable for injuries resulting solely from the negligence of such subordinates.20 A child was injured by falling into an excavation carelessly left open in a school yard by workmen engaged in making repairs on a school house. The repairs had been ordered by the school trustees of the ward and were under the direction of the superintendent of buildings. Action was brought against the ward trustees and the building superintendent individually, none of whom were themselves negligent. The judge said: "Upon this state of facts we think the complaint was properly dismissed. The trustees, in directing the repairs to be made, and in employing workmen for that purpose were acting within the scope of their authority. They were charged with the safe-keeping of the school property in their ward, and authorized to make needful repairs within certain limits. The employment of workmen for this purpose was necessary, and if they employed competent men, and exercised reasonable supervision over their work, their whole duty as public officers was discharged. They were acting as N. W. 23, L. R. A. 1916F, 468. "The board of education is a body corporate; it is distinguished from its individual members; they are in no wise liable. The board of education can act only as a body."-Johnson v. Bd. of Ed. of Hudson (1924) 210 N. Y. App. Div. 723, 206 N. Y. S. 610. 19 Herman v. Bd. of Ed. of Dist. No. 8 (1925) 234 N. Y. 196, 137 N. E. 24. See also: Hydraulic Press Brick Co. v. School Dist. of Kirkwood (1899) 79 Mo. App. 665; Reese v. Isola State Bank (1925) 140 Miss. 355, 105 So. 636. 20 McKenna v. Kimball (1888) 145 Mass. 555, 14 N. E. 789, 35 Cyc. 971. Legal Authority of Public School Officers 155 gratuitous agents of the public, and it could not be expected that they should be personally present at all times during the progress of the work to supervise the conduct of the workmen. In this case it must be assumed that the defendants were not chargeable with personal negligence, and they omitted no duty imposed upon them by law. It would be equally opposed to justice and sound public policy to make them answerable for the negligence of the workmen. They were acting as public officers, and in respect to the acts of persons necessarily employed by them the doctrine of respondent superior has no application."21 ~95. LIABILITY FOR MISAPPLICATION AND MISAPPROPRIATION OF FUNDS.22-DIRECTORS AND TRUSTEES. When the duties of school officials are specifically stated by statute, such duties are ministerial and must be strictly followed. The care and disposition of school funds are usually specifically provided for, and liability usually follows loss due to neglect to follow specifications. A statute provided that teachers were not to be paid until they had made a certain report to the school committees. Where a teacher, not being entitled to pay under this statute was nevertheless paid by a committeeman, there it was held an action would lie in favor of the district against the committeeman for recovery of the school funds thus illegally disposed of.23 When statutory provisions indicate certain payments are to be made out of particular funds, directors must refrain from devoting money from such funds to other purposes. Thus, where directors made payments for another purpose out of a fund set aside for the payment of teachers, they were held personally liable therefor.24 It was held to make no difference that payments were made from this fund in good faith and 21 Donovan v. McAlpin (1881) 85 N. Y. 185, 39 Am. Rep. 649. 22 Most of the cases here considered are actions on official bonds and to that extent perhaps sound largely in contract, and others in quasicontracts, but are here considered for the tort principles involved. 23 Moultonborough v. Tuttle (1853) 26 N. H. 470-this action was in assumpsit for money had and received. See also: Dickinson Twp. v. Linn (1860) 36 Pa. St. 431, where school officials voting for an illegal payment of a teacher were held personally liable to the township. 24 Consol. School Dist. No. 6 v. Shawhan (1925)........ Mo. App.......... 273 S. W. 182. 156 The Legal Authority of the American Public School with no wilful intention. This duty was a ministerial one, and the question of motive did therefore not enter. School directors must follow closely the terms of statutes when disposing of school funds coming into their hands. If it is required that such funds be placed in the hands of the treasurer, and it is given to another, it is at the personal risk of such directors.25 Sale of school bonds must be in the mode prescribed and at no less than par value, and loss resulting from sale at less than par value is a personal liability of the school directors.26 The members of a Montana school board fraudulently caused the district to enter into contracts for the purchase of a piano and a victrola, both in very bad condition. Bids of other concerns were not considered. It was held that the board members were personally liable for the funds disposed of. It was contended that the officers were acting in official discretion and so would not be liable. The court said, "Discretion, as applied to public functionaries, such as members of a school board when purchasing property for the district, means the power or right to act officially according to what appears just and proper - that is 'deliberate judgment'- and officers prompted by a fraudulent purpose in awarding a contract cannot be said to be exercising discretion."27 A Florida statute provides for the personal liability of officials causing a loss to the district by turning funds over into the hands of an officer who has not given the bond required by the statute.28 ~96. SAME -SCHOOL TREASURER. A treasurer who refuses to turn over to his successor the balance of school funds in his hands is liable to the suit of the district.29 This means all the funds received and not drawn out by an order of the majority of the trustees.30 A treasurer was held liable for 25Adams v. State (1876) 82 Ill. 132; Lindsey v. Marshall (1849) 20 Miss. (12 Smedes & M.) 587. 26 Adams v. State, supra. 27 School Dist. No. 2 v. Richards (1922) 62 Mont. 319, 205 Pac. 206. 28Florida School Laws (1925) ~20, p. 15. 29 This suit usually is on the treasurer's official bond, but may be outside the bond in assumpsit.-Bd. of Ed. v. Milligan (1894) 51 Ohio. St. 115, 82 N. E. 255. School Dist. No. 64 v. Hand (1927) 124 Kan. 121, 257 Pac. 931. 30 Lindsey v. Marshall (1849) 20 Miss. (12 Smedes & M.) 587. Legal Authority of Public School Officers 157 school money illegally paid out to a teacher as wages, since such teacher was illegally elected in that the meeting at which the election took place was not properly conducted, and also since the teacher did not have the proper certificate. But when a treasurer has in his hands school funds and refuses to pay a teacher's wages upon a proper order and demand, he is held personally liable to the teacher.31 It is clearly seen in such a case that the duty of the treasurer is a purely ministerial one which he must perform without regard to his own wishes or opinion. But, on the other hand, he must not honor bad warrants. Whereas school directors in deciding to issue a warrant may be acting in a quasi-judicial capacity and so not be liable for issuing a warrant through mistake,-"A different rule, however, applies to the treasurer. He is only authorized to pay out money on the orders or warrants of the board of directors of the school district 'properly drawn.' The law requires that the directors shall draw orders on the treasurer for the payment of the wages due teachers or for any lawful purpose, and that they shall state in every such order the services or consideration for which the order is drawn, and that when the warrants are properly drawn he shall honor the same out of the funds, in his hands for that purpose, belonging to the district.... When a warrant, therefore, is presented to the treasurer for payment for an unauthorized purpose, the treasurer pays the same at his peril, and is personally and individually liable to the district for the moneys unlawfully expended."32 A treasurer who without an order from a board of trustees released a mortgage given to secure a debt due the school fund was held liable upon his official bond for loss sustained in consequence thereof.33 It has been held that it is no defense that the board of education has authorized an illegal action on the part of a treasurer. Thus, where a treasurer failed to properly secure a loan of school funds, authorization by the board was no defense in that the board had no power to determine the sufficiency of the security, that being vested solely in the treasurer.34 But where by statute a treasurer was to be 31 Edson v. Hayden (1864) 18 Wis. 627. 32 Hendrix v. Morris (1918) 134 Ark. 358, 203 S. W. 1008. 33 Township v. Misenheimer (1875) 78 Ill. 22. 34 Bd. of Trustees v. Baker (1887) 24 Ill. 406. 158 The Legal Authority of the American Public School liable "for all losses sustained... by reason of any failure upon his... part to perform the duties required of him... by the provisions of this act...", a treasurer was not held for a loss resulting from turning in an incorrect report of a school census, since such act was not "required" of him but had been performed voluntarily.35 ~97. LIABILITY FOR THE LOSS OF SCHOOL FUNDS. The weight of authority has been that the person in whose care school funds are left is absolutely liable in case of the loss of such funds whether such loss was the fault of the custodian or not.36 Thus, when the treasurer in the exercise of the due diligence and care and in good faith deposited the school funds in a bank which failed, the court said that "the treasurer was absolutely liable for the money coming into his hands as treasurer, regardless of the cause of, or the circumstances attending, its loss."37 A Minnesota school treasurer kept the district funds locked in an iron safe in his place of business. This safe was blown open and the funds stolen. Under the general rule the treasurer and his sureties were held liable for the loss. The school corporation is powerless to absolve the treasurer from his liability in such cases, and a vote of the trustees will not be accepted as a defense.38 But a state legislature was held not precluded by either the state constitution nor the provision of the Federal Constitution against impairment of the obliga35 People v. Ray (1917) 206 Ill. App. 406. 36 Indiana: Inglis v. Hughes (1878) 61 Ind. 212. Iowa: Taylor Dist. Twp. v. Morten (1873) 37 Iowa 550; Bluff Creek Dist. Twp. v. Hardinbrook (1874) 40 Iowa 130. Minnesota: Bd. of Ed. of Pine Island v. Jewell (1890) 44 Minn. 427, 46 N. W. 914, 20 A. L. R. 586. Missouri: State v. Powell (1878) 67 Mo. 395, 29 Am. Rep. 512. Nebraska: Ward v. Colfax Co. (1880) 10 Neb. 293, 4 N. W. 1001, 35 Am. Rep. 477. South Dakota: De Rockbrain School Dist. No. 1 v. Northern Casualty Co. (1915) 36 S. D. 392, 155 N. W. 10. But see: Edgerton School Dist. No. 2 v. Volz (1926) 50 S. D. 107, 208 N. W. 576, where this rule has been changed by statute, thus no longer making the treasurer an insurer. Wisconsin: School Dist. No. 1 v. Larson (1928)...... Wis.......... 218 N. W. 847. See also: 24 R. C. L. 598; Mechem, Public Officers, ~301. 37 Bluff Creek Dist. Twp. v. Hardinbrook (1874) 40 Iowa 130. 38 Taylor Dist. Twp. v. Morten (1873) 37 Iowa 550; Ward v. Colfax County (1880) 10 Neb. 293, 4 N. W. 1001, 35 Am. Rep. 477. Legal Authority of Public School Officers 159 II I I......... tion of contracts from releasing a county treasurer from liability for school and county funds taken by burglars without his fault from a safe furnished him by the county.39 This harsh general rule has not been followed in several instances, but instead it has been held that where the loss occurred without fault of the custodian of the funds he is not personally liable therefor. Thus a county trustee as custodian of school taxes had in his hands $5000, and in order to insure safety took it to a bank of good and reputable standing for 30 years, but which shortly thereafter failed. The court pointed out that the loss occurred through no negligence of the trustee, and therefore held him not liable.40 Usually in such cases where the custodian is not held, statutes prescribe certain conditions and if these are met there is no liability for a later loss.41 There appears to be somewhat of a tendency to employ more statutes of this nature.42 ~98. LIABILITY FOR NEGLECT TO TAKE CONTRACTOR'S BOND. Statutes frequently require that a bond be taken from contractors conditioned for the faithful performance of the contract and for the payment of materialmen and laborers. Thus a ministerial duty is imposed upon the school officers. Neglect to take such a bond, therefore, is held to make the school officers of whom the performance of this duty is required liable for resulting loss to laborers or materialmen.43 Thus in a Missouri case44 the duty to take such bond as required by statute was held the individual duty of the directors of a city school district. In holding such directors liable for neglect to take such bond, the court said by Robertson, J., 39 Pearson v. State (1912) 56 Ark. 148, 19 S. W. 499, 35 A. L. R. 91. 40 State v. Copeland (1896) 96 Tenn. 296, 34 S. W. 427, 31 A. L. R. 844. 41 Hanson v. Indep. School Dist. of Holsties (1912) 155 Iowa 264, 135 N. W. 1090; Bd. of Ed. of Rugby v. Nelson (1916) 33 N. D. 462, 157 N.W. 576; Edgerton School Dist. No. 2 v. Volz (1926) 50 S. D. 107, 208 N. W. 576; School Dist. No. 1 v. Aiton (1928) 173 Minn. 428, 217 N. W. 496. 42 See Mechem, Public Officers, ~297 et seq. for a discussion of the various points of view on liability for loss of funds and the supporting reasons. 43 Owen v. Hill (1887) 67 Mich. 260, 44 N. W. 267; Wells v. Bd. of Ed. (1889) 78 Mich. 260, 44 N. W. 267; Burton Machinery Co. v. Ruth (1916) 194 Mo. App. 140, 186 S. W. 737; Austin v. Ransdell (1921) 207 Mo. App. 74, 230 S. W. 334. See also: Ore. School Laws (1927) Chap. VIII, ~313, p. 99. 44 Burton Machinery Co. v. Ruth, supra. 160 The Legal Authority of the American Public School "It is a well-settled rule that where the law requires absolutely a ministerial act to be done by a public officer and he neglects or refuses to do the act, he is liable in damages at the suit of a person injured. In such cases a mistake as to his duty and an honest intention is no defense." Then as a further reason it was added: "It is not intended that school districts should get the benefit of the property and labor of others without such persons receiving compensation therefor." It has been objected that the general holding in these cases imposes an unjustifiable hardship on school officers who have taken up the duties of their office as a matter of public spirit. The judge rendering the opinion of the leading case of Owen v. Hill 45 answered this objection as follows: "I am aware that it may be regarded as a great hardship to impose this liability upon persons who accept office and perform burdens gratuitously. But the law makes no exceptions, and I can make none. It is presumed that they know the law, and the further presumption is that they will obey it. If they do not, on whom should the loss properly fall? On these who neglect to perform a duty enjoined by law; or those whom the law was designed to protect from loss?" When school officers have attempted to satisfy the requirement of a contractor's bond, but fail to follow the exact terms of the statute, missing parts may be read into the bond. In such cases, if the bonds are held to hold the contractor anyway, it relieves the school officers from liability.46 If the statute requiring the taking of the contractor's bond leaves room for the exercise of discretion as to the terms of the bond, then board members are not liable when they take a bond which the officers consider sufficient, but which in fact proves insufficient to protect all parties. But the officers must have acted in good faith.4 45 Supra. 46 Fogarty v. Davis (1924) 305 Mo. 288, 264 S. W. 879. 47 1... We do not think the defendants are liable individually, for the reason that it is neither pleaded nor proven that their action was wilfully wrong. On the contrary, the evidence clearly shows that defendants acted in good faith and required the giving of a bond which they evidently thought was sufficient to protect all parties interested. For an error of official judgment they are not individually liable."-Sailling v. Morrell (1914) 97 Neb. 454, 150 N. W. 195. Legal Authority of Public School Officers 161 If it be determined that the duty to take a contractor's bond be that of the school corporation and not that of the individual members, then the officers will not be held personally liable to those injured by neglect to take the bond.48 It has also been argued that when the statute requires that the contractor's bond be placed on record then the persons dealing with the contractor may know whether such bond has been executed, and hence cannot complain that they have been injured by neglect to take such bond. This reasoning was used in an Arkansas case, the court saying, "Appellant was chargeable with notice whether the bond had been given, and he had no right to voluntarily impose liability either upon the district or the directors, when he knew, or could have known, that no bond had been given."49 ~99. LIABILITY TO TRADESMEN. Sometimes it may seem to the best interests of the school to refuse to permit pupils while at school or going to or from school to patronize certain business establishments that may be located nearby. If this is done, such trades people may suffer serious injury. May they then recover damages from the school officers? In an Indiana case50 pupils were requested not to patronize a tradesman operating across the street from a school. Action was brought against the board of education, the superintendent and a teacher to recover damages for the resulting injury to the plaintiff's business. The action was not for libel nor slander, but was upon the theory that the pupils were maliciously persuaded not to patronize the store. In denying recovery, the court said: "It was proper for the school authorities to make such reasonable rules and regulations as were necessary for the discipline, government, and management of the school. The complaint contains no charge of 'threats' of 'intimidation' within the legal meaning of those terms. "It was not an unlawful act to advise or persuade the pupils not to visit appellant's store. The fact that he acted maliciously 48 Blanchard v. Burns (1913) 110 Ark. 515, 162 S. W. 63, 49 L. R. A. (N. S.) 1199; Plumbing Supply Co. v. Bd. of Ed. of Canton (1913) 32 S. D. 270, 142 N. W. 1131. 49 Blanchard v. Burns, supra. 50 Guethler v. Altman (1901) 26 Ind. App. 587, 60 N. E. 355. 162 The Legal Authority of the American Public School does not change the rule. An act which is lawful in itself, and which violates no right, cannot be made actionable because of the motive which induced it. A malicious motive will not make that wrong which in its own essence is lawful. "There seems to be some conflict in the cases as to whether a party is liable in damages for wrongfully and maliciously inducing another to break a contract with a third party. The better-reasoned cases hold there is no liability unless certain relations exist. "It is held there is a liability if the contract is for exclusive personal services. We know of no authority holding that an action will lie for maliciously persuading a party not to enter into a contract." ~100. CHAPTER SUMMARY. The division of political and judicial functions into the three branches legislative, executive and judicial is accompanied by a corresponding triple classification of public officers. A fourth group is composed of administrative officials in whom are reposed certain degrees of each of the three above functions. Accompanying the delegation of these powers to the administrative officers are certain degrees of the liabilities and privileges of legislative, judicial and executive offices proper. The powers and duties of administrative officers may be divided into the two groups: (1) discretionary, and (2) ministerial. In the exercise of discretionary power, the administrative officer is not liable for injury resulting from error in judgment so long as he acts in good faith, not wantonly and within his jurisdiction. But such officer must at least act-one way or the other. Ministerial duties must be performed exactly as required, and if within jurisdiction, motive is of no consequence. School officers are not liable for the torts of the corporation proper, nor for those of subordinates necessarily appointed by them, the rule of respondeat superior not applying. The care of school funds is usually regulated by statute. Such duty is therefore made ministerial and school officers are usually liable for misapplication and misappropriation of such money. This is also the case as to funds lost in any manner, and usually without regard to the fault of the custodian in such loss. The duty to take a bond from a contractor when so required by Legal Authority of Public School Officers 163 statute is a ministerial one and officers guilty of neglect to take such bonds are usually liable for loss resulting to materialmen and laborers. School officers are not liable for keeping pupils from patronizing nearby tradesmen by reasonable rules and regulations. CHAPTER VIII The Legal Authority of School Officers as Demonstrated by Their Tort Liability in Relation to Pupils and Teachers Analysis of Chapter SECTION PAGE Scope of chapter -- -- - -- -- - -- -- - - - -- - 101 164 Liability for school accidents -------------------—..........-..-102 164 Liability for exclusion of pupils In general -- -- - -- -- - -- - -- -- - -- - -- -- - -- - 103 168 No liability where exclusion lawful -------------—.... 104 170 Application of general rule --------------------—.... ---.-. 105 171 Liability to parent -------------------------- 106 173 Liability for corporal punishment of pupils.-. 107 175 Liability for dismissal and ejection of teacher...-.. 108 177 Liability for libel and slander-Defamation in general.. 109 182 Application of principles of libel and slander To charges against teachers generally..-. 110 185 To communications between board members - 111 186 To communications to superiors - 112 189 To public discussion ------------------- 113 190 Chapter summary ------------------- 114 191 ~101. SCOPE OF CHAPTER. In the preceding chapter the legal position of school officers was shown thru a study of the general rules of non-liability of such officers in relation to their official acts as members of school boards or boards of education. Further illumination was indicated by contemplation of the liability of school officers in relation to the handling of school funds, in respect to contractors' bonds, and the general rule of non-liability in suits of injured tradesmen. This chapter is a further extension of this same inquiry, but especially as to indication of the authority of school officers in relation to such acts as affect the pupils and teachers. ~102. LIABILITY FOR SCHOOL ACCIDENTS. When an injury grows out of a condition which has resulted from the exercise of official discretion, no individual liability attaches unless it be shown that the act or omission was attended with malice, Authority in Relation to Pupils and Teachers 165 bad faith or intent. Thus Indiana statutes provided that school trustees should provide "suitable" specifications for school buildings. A school building was erected which had an outside basement entry unguarded by railings. A child was injured by falling into this opening, and action was brought against the trustee who had selected the specifications for the building. Enloe, J., holding the trustee not individually liable said: "Whether or not the plans and specifications procured in any given case are, or are not, 'suitable' involves the exercise of judgment. The exercise of this judgment the law has left with the township trustee, and, even though such trustee should exercise very poor judgment in the matter of selecting such plans that he is not liable in damages therefor because that fact is well settled."' Many of the duties involved for members of boards of education in the execution of the governmental functions of the corporations are such as require exercise of discretion, and for error no liability attaches. Thus furnishing of transportation is a governmental function. The selection of one type of bus rather than another and the selection of a driver are performed in the exercise of discretion, so board members have been held not liable for an accident occurring because a driver turned out to be an incompetent one. Discussing this point it was stated in the case, School District No. 1 v. Wright: "Those who are carrying out the plan adopted for our free school system, and especially those who are devoting time and attention, without compensation, to making the same effective, are entitled to know whether or not they are to be held liable in actions for negligence, or whether they are protected in performing governmental functions of the state in the same manner that the state itself would be protected, where they set in good faith, without malice, without compensation, and solely for the public good. And after a most careful consideration we are led to hold that they should be so protected, in the absence of a positive statute of our law making power indicating a wish to the contrary."2 Sherman v. Miller Constr. Co. (1927)........ Ind........., 158 N. E. 255. For case note see: 2 Dak. L. Rev. (1928) 177. 2 (1927) 128 Okl. 193, 261 Pac. 953. 166 The Legal Authority of the American Public School Where a child was injured by a horizontal ladder which, being insecurely fastened, fell while the plaintiff was exercising on it action was brought against the board of education and two of its individual members, alleging negligence in not employing a competent inspector. The court pointed out that the statute did not require "absolutely, certainly, and imperatively" the employment of an inspector. In other words, it was a matter of judgment whether such an inspector be employed, and if it were decided not to employ one, such decision would not be negligence, and hence the defendants were not liable.3 It has been held that the determination of the members of a board of education to hold field day exercises, and the determination of the manner of conducting such exercises were discretionary and that school officers were not liable for injuries resulting therefrom. But after these determinations were made, the acts connected with the preparation and the general management of the field day exercises were ministerial. So the members of the board of education and the clerk were held personally liable for an injury resulting from the collapse of seats negligently erected for use by spectators during the exercises. It was said in the opinion: "It need hardly be said that these powers of such boards are discretionary powers, and that in their scope they are broad enough to permit such boards, in their discretion, to make all proper arrangements for the conduct of field day exercises, which as a matter of common knowledge go to the physical education of the pupil and his development in athletics. A duty is discretionary when it involves on the part of the officer to determine whether or not he should perform a certain act, and, if so, in what particular way, and in the absence of corrupt motives in the exercise of such discretion he is not liable. His duties, however, in the performance of the act, after he has once determined that it shall be done, are ministerial, and for negligence in such performance, which results in injury, he may be liable in damages." We have seen that the members of a board of education are not liable for acts or omissions in a duty which is imposed s Johnson City Bd. of Ed. v. Ray (1926) 154 Tenn. 179, 289 S. W. 502. 4 Adams v. Schneider (1919) 71 Ind. App. 249, 124 N. E. 718. Authority in Relation to Pupils and Teachers 167 upon the school corporation itself.5 Although a duty may be that of the school corporation, a single member of the board may be made the agent of the corporation to execute a particular piece of work. In such a case that work becomes the ministerial duty of that person and for a tort in connection with such a duty he may be liable personally. In a New York case where a teacher was injured by stepping in a hole in a schoolroom floor, the board members generally were not held liable since the duty of making repairs was one imposed upon the corporation and not the individual members. But it appeared that one member of the board, a carpenter by trade, had by arrangement assumed the duty of making small repairs as they occurred. Discussing his liability the court said, "... it may be that if one of them had been duly charged by the corporate body as its agent or servant, distinct from his relation as a corporator, with duty and responsibility, the neglect of which brought damage to another, he would be liable as a private person therefor."6 But in order that there be liability for neglect of a ministerial duty, such duty must be clear and definite. It seems that the duty here was not clearly enough set forth. "It is not distinct here whether each occasion for supplies and repairs was brought first before the board, and its order first had, before he was to provide them on notice from the board given to him, or whether there was a prior agreement, general in its bearing, by which he was to see to it of his own motion that the building was kept repaired and supplied in these small matters. In the one case he would not be liable for neglect to repair, until moved thereto by the order of the board; in the other he possibly might be. The question of fact, what was the agreement, is still for the jury; and thereon hangs the question of his individual liability." When an action is instituted against a school officer for damages for an injury alleged to be the result of an act or omission in connection with a ministerial duty of such officer, it must be shown that the act alleged is the proximate cause of the injury, or the officers will not be held liable. A fire escape 5 Ante, p. 152 et seq. 6 Bassett v. Fish (1878) 75 N. Y. 303. 168 The Legal Authority of the American Public School ladder suspended by a rope running over a pulley, and counterbalanced by a weight fastened at the other end of the rope, was allowed to be so close to the ground that children could reach the ladder and move it up and down, thus raising and lowering the weight. While this was being done, the pulley became detached allowing the weight to fall on and injure one of the children. Alleging negligence on the part of the board members in leaving the ladder so low that children could move it up and down, action was brought to recover damages for the injury. The court pointed out that the moving of the ladder was not the proximate cause of the accident, but rather the defective fastening of the pulley. Since negligence was not alleged as to the pulley, but only the ladder, the officers were not liable."There is no allegation that the pulley was either negligently made or negligently affixed, nor any averment of negligence in respect to it. If the moving of the ladder caused the pulley to break loose and the weight to fall, it was solely because of the condition of the pulley. Unless that condition was the result of the negligence of the defendants, they cannot be held liable for the injury. Negligence is not presumed. The plaintiff must allege and prove that the negligent act of the defendants was the direct or proximate cause of the injury or he cannot recover. No negligence being alleged with respect to the thing which caused the injury, it must be presumed that the defect was a latent defect, with notice of which the defendants are not chargeable, or that the detachment of the pulley was brought about by the act of some third person for whom they are not responsible. The consequence is that the complaint does not state a cause of action."7 ~103. LIABILITY FOR EXCLUSION OF PUPILS-IN GENERAL.8 Under certain circumstances the right to an education may be deprived a pupil for a longer or shorter time. Often statutes enumerate the grounds for such exclusion. When that is done, exclusion is made ministerial to a certain extent, so that if a child is dismissed for a reason other than those enumerated, the school officers so doing may be liable in damages. Thus Marsiglia v. Dozier (1911) 161 Cal. 403, 119 Pac. 505. 8 See, ante, p. 84. Authority in Relation to Pupils and Teachers 169 where a statute gave school directors power to expel only for disobedient, refractory or incorrigibly bad conduct, a pupil was dismissed for refusal to study bookkeeping. The court declared such study purely optional and that the directors had no power to require its pursuit nor to punish a pupil for refusing so to do, and held the directors liable in damages.9 Directors called a special meeting to consider the expulsion of a pupil and to this meeting invited patrons of the district. Although the patrons voted on the question of expulsion with the directors, and although no formal record was kept, it was held that exclusion was not wrongful and neither the school officers nor the voting patrons were liable therefor.'1 Even though a statute may enumerate grounds for expulsion much discretion is necessarily involved in determining whether a given case comes within the terms of the statute. So, for example, where a statute allows expulsion for "incorrigibly bad conduct," a court said, "the expulsion or suspension of a pupil from the benefits and privileges of the school for what is considered 'incorrigibly bad conduct' implies deliberation and decision on the part of the directors or, as it is sometimes expressed, they act judicially in a matter involving discretion in relation to the duties of their office."1l Thus a Minnesota statute provided: "Any member of any public school board or board of education of any district, who, without sufficient cause, or on account of race, color, nationality, or social position, shall vote for, or, being present, shall fail to vote against, the exclusion, expulsion, or suspension from school privileges of any person entitled to admission to the schools of such district, shall forfeit to the party aggrieved fifty dollars for each such offense to be recovered in a civil action."l2 Under this statute it was held it was left to the good judgment of the authorities under the term "sufficient cause" to 9 "... The directors having no such power, they could not lawfully expel appellee from the benefits and privileges of the school for a refusal to comply with this requirement, and when they did so with force, it constituted a trespass."-Rulison v. Post (1875) 79 Ill. 567. 10 Smith v. Johnson (1920) 105 Neb. 61, 178 N. W. 835. 11 McCormick v. Burt (1880) 95 Ill. 263, 35 Am. Rep. 163. 12 Gen. St. 1913, ~4640. This statute is still in effect.-Minn. School Laws (1927) ~177, p. 55. 170 The Legal Authority of the American Public School determine to exclude a pupil, and that no liability would accrue under the statute unless it be shown the exclusion was not for "sufficient cause." Therefore board members were not liable for voting for temporary exclusion of unvaccinated pupils during danger of a smallpox epidemic.13 Where statutes permit expulsion for reasons expressed as "refractory conduct, or insubordination," the school authorities are allowed a wide discretion as to what comes within such terms.14 Generally speaking, the determination by school officers as to exclusion of pupils is one of the best examples of the exercise of a quasi-judicial function by administrative officers. Therefore tort liability as to this function comes within the usual rule as to liability in the exercise of a discretionary duty. School officers, therefore, are not liable in damages to a pupil for an exclusion within their jurisdiction resulting from error in judgment in the absence of wanton conduct or malicious motives.15 ~104. SAME-No LIABILITY WHERE EXCLUSION LAWFUL. If the expulsion is for the violation of a rule that the school officers may lawfully pass, then, of course, the officers are not liable there being no tort. The question in such cases is the reasonableness of the rules. Where a rule was formulated that any pupil absent six half days in any consecutive four weeks, absence for illness excepted, should be suspended, school officers were held not liable for an expulsion under the rule, said rule being within the authority of the officers and reasonable 13 Bright v. Beard (1916) 132 Minn. 375, 157 N. W. 501. 14 Drunkenness away from school and school grounds held cause for suspension under above statute.-Douglas v. Campbell (1909) 89 Ark. 254, 116 S. W. 211, 20 L. R. A. (N. S.) 205. 15 Arkansas: Douglas v. Campbell (1909) 89 Ark. 254, 116 S. W. 211, 20 L. R. A. (N. S.) 205 (Expulsion here lawful). Illinois: McCormick v. Burt (1880) 95 Ill. 263, 35 Am. Rep. 163; Churchill v. Fewkes (1883) 13 Ill. App. 520. Maine: Donahoe v. Richards (1854) 38 Me. 376. Missouri: Dritt v. Snodgrass (1877) 66 Mo. 286, 27 Am. Rep. 343; Englehart v. Serena (1927)........ Mo......., 300 S. W. 268. New York: Stephenson v. Hall (1852) 14 Barb. 222. Ohio: Steward v. Southard (1867) 17 Ohio 402, 49 Am. Dec. 463. But see: Sweeney v. Young (1925)........ N. H........., 131 Atl. 155, 42 A. L. R. 757; Learock v. Putnam (1873) 111 Mass. 499. Authority in Relation to Pupils and Teachers 171 and proper for the government of the schools.16 There was no liability where a pupil was suspended for drunkenness away from school and the school grounds, since such expulsion was not unlawful.17 So where it was competent for school authorities to require the reading of the protestant version of the Bible there was no liability for excluding a pupil who refused to read said book.18 ~105. SAME-APPLICATION OF GENERAL RULE. In the Maine case just mentioned, the court in discussing the nonliability of school officers for errors in the honest exercise of their discretionary duties said: "If in the discharge of their duty in good faith, and integrity, they err, it is only what is incident to all tribunals. To hold them legally responsible, in such a case, would be to punish them for the honest convictions of the understanding in the decision of a matter submitted to them, and upon which, having assumed jurisdiction, they could not rightfully withhold a decision. The general principle is established by an almost uniform course of decisions, that a public officer, when acting in good faith, is never to be held liable for an erroneous judgment in a matter submitted to his determination. All he undertakes to do is to discharge his duty to the best of his ability, and with integrity. That he may never err, or that he may never decide differently from what some other person may think would be just, is not part of his official undertaking. "The defendants, therefore, however much they may have misjudged their duty, are not liable if they acted honestly. "It is not necessary to consider whether they acted wisely or not, if they acted in good faith in the exercise of their duty...." In the Missouri case, Dritt v. Snodgrass, the school authorities had exceeded their power in passing a rule that pupils should attend no social party during the school term since such rule unlawfully invaded the precincts of parental rights. But a child suspended for violation of the rule was denied recovery 16 Burdick v. Babcock et at. (1871) 31 Iowa 564. 17 Douglas v. Campbell (1909) 89 Ark. 254,116 S. W. 211, 20 L. R. A. (N. S.) 205. 1s Donahoe v. Richards et al. (1854) 38 Me. 376. 172 The Legal Authority of the American Public School against the school officers, the act having been done in the honest execution of official discretion.19 The remedy in such a case is by mandamus for reinstatement. It is not enough, therefore, to aver that an exclusion from school is an erroneous act but it must also be averred and proved that such action was taken in bad faith, either wantonly, willfully or maliciously.20 The very unreasonableness of a rule may give rise to inference of malice, and if exclusion were to be made for violation of such a rule, liability would attach. But where dormitory inmates' conduct was such that the lives of students were endangered, a requirement that a pledge of proper conduct must be signed was not an unreasonable rule.' In discussing this the Missouri court said: "The discretion with which school authorities are clothed with respect to discipline, management, and government of the institution committed to their supervision is in nature of judicial discretion. And adoption and enforcement by them of a rule falling within the general scope of their discretion can afford no basis for action for damages against them, unless the rule, or manner in which it is enforced, is so palpably unreasonable, arbitrary, and oppressive as to give rise to an inference of malice." This question of malice is therefore very important. It is left to the jury to ascertain from the evidence whether or not it is present. But if the jury disregards the evidence, the appellate court may upon appeal set the verdict aside as being against the weight of evidence.22 The fairly recent New Hampshire case, Sweeney v. Young, seems to be an exception to the general rule that in the presence of malice school officers will be liable in damages to a pupil thus excluded from school.23 Judge Allen, speaking for the court said: "The public interest that public officers shall be 'free and 19 (1877) 66 Mo. 286, 27 Am. Rep. 343. 20 McCormick v. Burt (1880) 95 Ill. 263, 35 Am. Rep. 163; Churchill v. Fewkes, (1883) 13 Ill. App. 520. 21 Englehart v. Serena (1927).-.-.-Mo., 300 S. W. 268. 22 Stephenson v. Hall (1852) 14 Barb. 222. 23 (1925) N. H.., 131 Atl. 155, 42 A. L. R. 757. Authority in Relation to Pupils and Teachers 173 fearless' in the exercise of their judicial duties makes it of immaterial bearing on their liability for their judicial acts whether or not they act from good motives. Their obligation is to do justice being owed to the state rather than to the parties coming before them, malice gives the parties no more right to sue them than an honest error subjecting the act to reversal. Judicial acts do not lose their character as such because malice induces them, and it is not of consequence, whether the act is free from error or irregularity, except for the malice, or whether there is involved some error or irregularity in addition to the malice, and, if so, whether or not the malice accounts for it. The judgment being rendered by an authorized tribunal, the tribunal incurs no civil liability in rendering it." This is putting the school officials into the same position as that held in this respect by judicial officers proper rather than quasi-judicial officers.24 A board member who has had nothing to do with an action taken by the rest of the school officers in unlawfully excluding a pupil is not liable for such dismissal.25 ~106. SAME-LIABILITY TO PARENT. When a pupil is injured in his right to an education by being unlawfully excluded from school he must bring the action himself. The injury is not to the parent but to the pupil. A parent may only sue when the exclusion of the child has occasioned the parent a direct pecuniary loss, as from loss of services.26 Perkins, J., said in Boyd v. Blaisdell:27 "The parent can sue only for an injury to his child occasioning loss of service. The child must sue for other injuries," and in Sorrels v. Mathews,28 it was said: "In no case can a father maintain an action for a wrong done to his minor child, unless the father has incurred some direct pecuniary injury therefrom, in conse24 See, ante, p. 150. 25 Sweeney v. Young, supra. 26 Douglas v. Campbell (1909) 89 Ark. 254, 116 S. W. 211, 20 L. R. A. (N. S.) 205; Boyd v. Blaisdell (1860) 15 Ind. 73; Sorrels v. Mathews (1907) 129 Ga. 319, 58 S. E. 819, 13 L. R. A, 357; Donahoe v. Richards et al. 38 Me. 376; Stephenson v. Hall (1852) 14 Barb. 222. 27 Supra. 28 Supra. 174 The Legal Authority of the American Public School quence of loss of service, or expense necessarily consequent thereon." Of the same tenor is the holding in Donahoe v. Richards.29 It was said in that case: "A minor child is subject to the commands of its father during minority, and the father is entitled to its services. Being entitled to such services, he can maintain an action for any wrongful act done to the child, by which it is disabled or made less able to render its due and accustomed service. "This principle, however, had been so far extended as to enable the father, when the child is too young to render any service to recover in case of a bodily injury for the trouble and expense he may have incurred in the care and cure of such child. But in such case, he cannot recover for the injury done to his parental feelings, or for the pain, and suffering, or the circumstances of insult and aggravation with which the infliction of the injury may have been attended. 'For injury to the person, the reputation, or the property, the suit must be in the name of the child, and the damages be awarded in accordance with the circumstances which may have accompanied and aggravated the wrong.'" "In this case, there is no act done, by which the ability of the child to render service is diminished. The school is for her benefit and instruction. The education is given to her; and if wrongfully deprived thereof, the loss of such deprivation falls on her. The wrong committed, the injury done, is done to her alone,-and if her rights have been violated, she alone is entitled to compensation. "In no case can a parent sustain an action for any wrong done to the child unless he has incurred some direct pecuniary injury therefrom in consequence of some loss of service or expenses necessarily consequent thereupon." The Ohio case of Roe v. Deming,30 seems to be the only exception to this rule. The court there said: "The father of a child entitled to the benefit of the public school of the subdistrict of his residence, may maintain an action against the teacher of the school and the local directors of the sub-district, for damages for wrongfully expelling the child from school." 29 Supra. 30 (1871) 21 Ohio St. 666. Authority in Relation to Pupils and Teachers 175 This is the whole of the holding, and it is unsupported by authority and reasoning. Express exception has been taken to it.31 ~107. LIABILITY FOR CORPORAL PUNISHMENT OF PUPILS. The question of the right of school officers to administer corporal punishment to scholars seldom arises, the duty of correction usually being left to the teachers.32 But it has arisen on at least two occasions. A director preceded a teacher to a school one morning to kindle the fire for her. He reprimanded a boy for his writings on the stove pipe, whereupon the pupil answered saucily and swore at him. The director then forcibly ejected the boy from the building. In an action against the director for assault, the court declared the ejection justifiable and held the director not liable. The court said: "From the facts detailed in the motion, the act of the defendant, in removing the plaintiff from the schoolhouse, is abundantly justified and may properly be commended. The school for the day had not commenced. The defendant being at the school-house, performing certain duties connected with the school, called the attention of the plaintiff to certain acts, not specially culpable in character, which he acknowledged he had committed, and the bearing and manner were insolent and offensive, and the language, reprehensible at all times, should not have been allowed to pass with impunity from a school boy of the older class, within the walls of a school-house, in the presence and hearing of younger pupils. After being told to leave, lie so conducted himself that it was proper to remove him, no unnecessary force used to attain that object."33 Two things should be noted in the case-first, the director was the only official present and evidently was considered in authority. Whether he could have done the same thing had the teacher been present does not appear. Second, the director used only the amount of force necessary to eject the pupil. Whether or not he would have been liable had he whipped the boy instead of ejecting him is not determined. The most that can 31 It was said in Sorrels v. Mathews, supra, speaking of the Roe v. Deming holding, "There was no further opinion rendered, and no authority cited. We do not agree to the soundness of this dictum." 32 See full discussion, post, Chapter X. 83 Peck v. Smith (1874) 41 Conn. 442. 176 The Legal Authority of the American Public School be said, then, is that a school officer lawfully present in a schoolhouse may, in the absence of the teacher, eject a pupil for swearing and insubordination, using what force is necessary for that purpose. The Missouri case, Haycraft v. Grigsby,34 however, definitely lays down the rule that if a school officer is present when a teacher unlawfully and tortiously chastises a pupil, and if such officer encourages or assists in the punishment, he is liable with the teacher as a joint tort feasor in damages to the injured child. The circumstances were aggravated in this case. Two directors visited the school in order to lecture a recalcitrant pupil. The teacher thought she heard another, an eleven year old pupil, scratch his desk or slate and for this, and an act of defiance, she administered a severe whipping; then later when the boy was unable to recite she inflicted a most excessive flogging while the directors looked on approvingly, the one of them saying, "Give it to him"; the other acquiescing. The court held both directors liable with the teacher regardless of their motives in aiding the flogging"The instruction quoted was erroneous in telling the jury that, although, the teacher imposed immoderate and unreasonable punishment on the plaintiff, yet the two directors are not liable, unless they maliciously advised and directed her to do so, or aided and assisted her. If they advised or encouraged an immoderate whipping, or assisted in it, they are liable, whether their motive was malicious or not. Their interference is hard to excuse and impossible to commend at best. Persons are not allowed to immoderately beat and injure either children or adults from any motive good or bad; parents have no such right, nor teachers either. Punishment for the most useful and well-intended objects and when absolutely necessary, must always be kept within moderate bounds. If the directors encouraged or aided in the punishment, as one of them undoubtedly did, and if the same was excessive, malice is no more required to make them responsible than it is to make the teacher. One is as guilty as the other. It is not necessary to impute malice to either of them.... Whatever the provocation 34 (1901) 88 Mo. App. 354. Authority in Relation to Pupils and Teachers 177 if it was immoderate, those engaged in it are still liable, even though their purpose was laudable." ~108. LIABILITY FOR DISMISSAL AND EJECTION OF TEACHER. The question of liability for dismissal of a teacher usually arises in actions on breach of contract, and usually in suits against the school corporation. Being a question of contracts, this has not been treated in this study. But sometimes actions for damages for wrongful dismissal have been brought against the school officers personally. Although the matter sounds largely in contract, since sometimes the actions have been in tort, a brief review of the question is here presented. It has been held that a teacher holding a valid contract to teach may, nevertheless, be discharged at any time, and in the absence of a statute enumerating causes for dismissal, for any cause, although the teacher has in no way violated her contract. But in such a case she has an action for damages for breach of her contract. The whole matter of the status and rights of a teacher under his or her contract was set forth very clearly in the New York case, Swartwood v. Walbridge, in which the decision was rendered in 1890. In that case it was said: "The question is distinctly presented, by several exceptions in the record, whether the trustee of a public school has the power to discharge a teacher, either with or without cause, to the effect of terminating the employment of the teacher, and depriving him of his authority to continue in charge of the school. Of course, the trustee cannot by an act of his own, and without consent of the teacher, abrogate an existing contract, which the latter has not violated, and stands ready to perform, so as to deprive the teacher of his remedy for a breach of contract. But the question here is not whether the trustee may terminate the contract, but whether he may terminate the employment of the teacher at his pleasure. The answer to the question manifestly depends upon the relation in which the two stand to each other. If the position of the teacher were that of a public officer and the trustee of the appointing power, we should expect to find the tenure of the office defined by the statute by which it was created. But there is no such office 178 The Legal Authority of the American Public School created or recognized by statute. The teachers of the public schools are not public officers, but simply the employees of the trustees of the schools in whose service they are employed. They are not appointed, but hired, and the tenure of their employment must be governed by the same rule as that which applies to the case of every person employed in the service of another under a contract of hiring. That contract is one of which neither party can enforce specific performance. No employer can be compelled to retain in his employment, beyond the time when it suits his pleasure to dispense with his services; nor, equally, can the person employed be compelled to continue in the employment beyond the limit of his pleasure and convenience. Either is, of course, liable to an action for breach of the contract, but neither can employ restraint or force to compel performance on the part of the other. This rule, it is apparent does not impair the obligation of the contract, but merely excludes one mode of enforcing its obligation. The housekeeper may discharge her cook, the keeper of horses may discharge his groom, the merchant his clerk or bookkeeper, the manufacturer his overseer or superintendent, notwithstanding, an unexpired contract of employment, and the remedy of the person discharged is by his action for damages. He can neither compel specific performance of the contract by process of law nor maintain himself in his position by force. Of course, the rule is reciprocal in its operation. No servant or employee can be compelled, either by legal or personal constraint, to continue to render the services contracted for. He may leave his employment whenever he sees fit, and the remedy of his employer is by action for breach of contract."35 But it is, however, held that the school officers must not abuse their discretion nor exceed their authority.36 When it is held that the breach of a teacher's contract is the act of the school corporation, individual board members are not liable in damages.37 But actions have been taken against the officers individually, alleging unlawful dismissal as an 35 57 Hun. 33, 10 N. Y. S. 862. See also: Kelderhouse v. Brown (1886) 17 Abb. N. C. 401. 36 Kelderhouse v. Brown, supra. 37 Morrison et al. v. McFarland (1875) 51 Ind. 206; Reynolds v. Foster (1910) 123 N. Y. S. 273; Butler v. Haines (1881) 79 Ind. 575. Authority in Relation to Pupils and Teachers 179 individual act of the officers, and attempting to hold them personally liable. When such action is allowed, it is usually held that school officers are acting in the exercise of judicial discretion and are therefore, not liable unless it be shown that the dismissal was determined by malice, in bad faith or with intent to injure the teacher, not in the honest discharge of duty or outside their jurisdiction.38 Thus, where the members of the board of school commissioners of Baltimore preferred charges against a teacher and held a hearing as was required by the city charter, they were held not liable for the dismissal of a teacher, although it was alleged that false representations were made. However, no, or at least insufficient allegations of malice were made. The court said: "Charges were preferred against the plaintiff, and the trial of these charges was had by the board after notice to the plaintiff, and she was removed as teacher. In the trial of these charges, the board was acting within its jurisdiction and was exercising quasi judicial powers, and the members of the board cannot be held individually liable, in the absence of malice, fraud or corruption on their part, and there was not sufficient allegations in the declaration that they were so actuated."39 But where school officers had power to dismiss a teacher "whenever in their judgment the interests of the school should demand it" the jury found that a teacher had been discharged through the unlawful and malicious use of their official power for the purpose of injuring the teacher in her calling, and by means of a conspiracy, and there the school officers were held liable to the teacher in damages.40 Likewise, where the only statutory provision in anyway applicable to the power of 38Kentucky: Adams v. Thomas et al. (1890) 11 Ky. L. Rep. 701, 12 S. W. 940. Maryland: Roschen v. Packard (1911) 116 Md. 42, 81 Atl. 174. Minnesota: Christensen v. Plummer et al. (1915) 130 Minn. 440, 153 N. W. 862. Missouri: McCutchen v. Windsor (1874) 63 Mo. 149. North Carolina: Spruill v. Davenport (1919) 178 N. C. 364, 100 S. E. 527. Ohio: Gregory v. Small (1883) 39 Ohio St. 346. Pennsylvania: Burton v. Fulton (1865) 49 Pa. (13 Wright) 151; Miller v. Harvey (1906) 215 Pa. 103, 64 Atl. 330. 39 Roschen v. Packard (1911) 116 Md. 42, 81 Atl. 174. 40 Christensen v. Plummer et al. (1915) 130 Minn. 44, 153 N. W. 862. 180 The Legal Authority of the American Public School school officers to dismiss a teacher was one which gave school directors power to "hire legally qualified teachers," there the court construed the statute to mean that the directors could not dismiss a teacher without showing "good and sufficient cause," such as that the teacher was "palpably deficient, grossly immoral or unquestionably unfit, which showing would then justify the directors in removing him." Therefore, it was held a dismissal was unlawful when the actuating reason seemed to be a desire to have another person as teacher, and the directors were held liable for taking possession of the schoolhouse and refusing to allow the teacher to go on with his contract. It was further said: "It is, however, insisted, that although the defendants may not have been justified in doing what they did, still, as they acted in an official capacity, they cannot be made individually liable. The rule is firmly established, that officers, acting in a judicial or discretionary capacity, will not be liable unless guilty of either wilfulness, fraud, or corruption; or unless they knowingly acted wrongfully and not according to their honest convictions of duty. "But where trustees, directors, or commissioners do acts not within the scope of their authority, or are guilty of negligence in doing that which they are empowered to do, or are guilty of arbitrary, wanton, or oppressive conduct, they render themselves liable. It is in the nature of an action on the case according to the old system of pleading. The defendants were not acting within the scope of their authority, when they arbitrarily took possession of the schoolhouse and persistently refused to let the plaintiff complete his contract."41 It has been held that school officers need given no further reason for a dismissal than that it was for the best interests of the school, and such reason does not give rise to inference of malice, bad faith not being presumed.42 When board members act upon charges that have been brought against a teacher, and they have made a decision to dismiss the teacher, it does not make such officers liable that such charges may have been false, if the officers acted in good faith.43 If it can be 41 McCutchen v. Windsor (1874) 55 Mo. 149. 42Burton v. Fulton (1865) 49 Pa. (13 Wright) 151. 43 Miller v. Harvey (1906) 215 Pa. 103, 64 Atl. 330. Authority in Relation to Pupils and Teachers 181....... shown that the teacher does not hold her position lawfully, as by not being properly qualified or having an invalid contract, then she has no cause of action if dismissed under circumstances which might otherwise support such action.44 Such a teacher has not been injured. An individual school officer has been held liable in an action in tort for procuring the breach of a superintendent's contract by a board of education.45 "The malicious interference with the contract relations of others, resulting in a breach of the contract," said Judge Dibell, "constitutes a tort against the one injured." "If the two defendants,46 by concert of action, and with malice procured the school board to break its contract with the plaintiff, they are liable as joint tort-feasors." Had it been shown here that the school officers had acted in good faith, which it seems might have been done here, the officer would not have been held. The question has arisen as to the liability of school officers for assault and battery, for the forcible ejection of a teacher, or the forcible prevention of a teacher from entering the schoolhouse. The result in such cases depends upon whether there had been a proper dismissal of the teacher and if, when force was permissible, whether an excess was used. So, where it was held that a teacher might be dismissed at pleasure, a school officer was held not liable for assault and battery in using sufficient force to prevent a dismissed and notified teacher from entering.47 "The remedy of the plaintiff, if discharged without cause," said the judge, "was not to force an entrance into the schoolhouse in order to resume her duties as a teacher, but to tender a continuance of her services, and recover her compensation as if those services had actually been rendered during the term of her employment. If she mistook her remedy, the defendant was justified in resisting force by force, and was liable in this action only for excess of force employed." The mere demand of schoolhouse keys which are then delivered under protest has been held not such tortious and forcible interference as to make school officer personally liable. In such 44 Spruill v. Davenport (1919) 178 N. C. 364, 100 S. E. 527. 45 Faunce v. Searles (1913) 122 Minn. 343, 142 N. W. 816. 46 The other defendant was a patron of the school. 47 Swartwood v. Walbridge (1890) 57 Hun. 33, 10 N. Y. S. 862. 182 The Legal Authority of the American Public School a case the teacher's remedy was held to be against the school corporation on her contract.48 But where it was held the dismissal of a teacher was an unlawful one, being grounded upon malicious motives and with dishonest intent, there it was held school officers were acting outside the scope of their authority in forcibly dispossessing a teacher of the schoolhouse and wantonly obstructing him in the performance of his contract, and so were liable personally in damages.49 In an Indiana case,50 a teacher was working under a contract in which there was no provision for a vacation. After school had been in session for some months, the school officers decided to have two weeks vacation to which the teacher did not consent but prepared to hold school as usual. School was just being opened when the officers appeared, "seized him at his desk, and with violence threw him to the floor, and, not withstanding his resistance, dragged, pulled and threw him out of the house, injuring him seriously." Here it was held that the teacher "was not holding possession wrongfully, but was there by right, and the appellees, when they undertook to disposses him, were the wrong-doers."51 ~109. LIABILITY FOR LIBEL AND SLANDER-DEFAMATION IN GENERAL.52 "No man may disparage or destroy the reputation of another. Every man has a right to have his good name maintained unimpaired. This right is a jus in rem, a right absolute and good against all the world."53 Publication of false words injuriously interfering with this right constitute defamation. "Slander is oral defamation published without legal excuse, and libel is defamation published by means of writing, printing, pictures, images, or anything that is the object of the sense of sight."54 To be actionable in the common 48 Butler v. Haines (1881) 79 Ind. 575. 49 McCutchen v. Windsor (1874) 55 Mo. 149. 50 White v. Kellogg (18891 119 Ind. 320, 21 N. E. 901. 51 Reference is made in this case to the principles of the following cases: Johnson v. Putnam (1883) 95 Ind. 57; Fifty Associates v. Howland (1849) 5 Cush. (Mass.) 214; Judy v. Citizen (1884) 101 Ind. 18. See also: Mock v. Bd. of Ed. of Nelson Co. (1911) 145 Ky. 715, 141 S. W. 38. 52 See ante, p. 72. 53 Odgers, Lib. & Sland. (5th Ed.) 1. 5 Cooley on Torts (3rd Ed.) 366. Authority in Relation to Pupils and Teachers 183 law, defamatory words must be false,65 although the rule has been modified to some extent.56 Usually the intention of the defamer is of no consequence since the law is interested in the remedy of the injury rather than its cause,67 but this is important in the case of qualified privilege. The United States Supreme Court has classified actionable slander as follows: "(1) Words falsely spoken of a person which impute to the party the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished. "(2) Words spoken falsely of a person, which impute that the party is infected with some contagious disease, where, if the charge is true, it would exclude the party from society; or "(3) Defamatory words spoken falsely of a person, which impute to the party unfitness to perform the duties of an office or employment of profit, or the want of integrity in the discharge of the duties of such an office or employment. "(4) Defamatory words spoken falsely of a party which prejudice such party in his or her profession or trade. "(5) Defamatory words falsely spoken of a person, which though not in themselves actionable, occasion the party special damage."58 This classification applies to libel likewise.9 The first four classes in the above outline are called actionable per se,60 and if it be proven that they were falsely spoken or written, liability immediately attaches with no proof of actual damage required.61 This is so because it is clear on the face of the words themselves that injury must result. But the 55 36 Corp. Jur. 1232. 56 By constitutional or statutory provisions, as for example, ~9 of Constitution of North Dakota providing that, "... in all civil and criminal trials for libel, the truth may be given in evidence, and shall be a sufficient defence when the matter is published with good motives and justifiable ends"; and sometimes even in the absence of statute.Hutchins v. Page (1909) 75 N. H. 215. 67 Odgers, Lib. & Sland. (5th Ed.) 4. 58 Pollard v. Lyon (1875) 91 U. S. 225, 23 L. Ed. 308. 9 Cooley on Torts (3rd Ed.) 400. 60 By itself; of itself-Cyc. Law Diet. 61 Logan v. Hodges (1907) 146 N. C. 38, 59 S. E. 349, 14 A. & E. Ann. Cas. 103. 184 The Legal Authority of the American Public School fifth class stands in a different position. Words other than those coming in the first four classes are not actionable per se, but it must be shown that special damage has directly resulted from their utterance.62 There is an exception here as to libel since the written publication adds a certain gravity, and the general rule is: "Any false and malicious writing published of another is libellous per se, when its tendency is to render him contemptible or ridiculous in public estimation, or expose him to public hatred or contempt, or hinder virtuous men from associating with him."63 If it has been falsely said that a teacher is "a villainous reptile... not fit to go with decent girls,"64 that a teacher has committed criminal indecencies with pupils,65 that a teacher has made false statements in a report to the school board and is generally untruthful,66 that a teacher is insane,67 or that a male teacher has dismissed the boys and kept the girls in and courted them,68 the words have been held actionable per se, and the defamers have been liable in damages without special proof of injury. But here with defamation we find as in action in discretion certain privileges obtaining. Absolute privilege exists only in a few cases,69 but there is also a conditional or qualified privilege which "exists in a much larger number of cases. It extends to all communications made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty; and the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation."70 However, if it is shown that the defamer knew the words to be false, the protection of qualified privilege will be removed.71 62 Odgers, Lib. & Sland. (5th Ed.) 2. 63 Cooley on Torts (3rd Ed.) 401. 64 Bray v. Callihan (1900) 155 Mo. 43, 55 S. W. 865. 65 Thibault v. Sessions et al. (1894) 101 Mich. 279, 59 N. W. 624. 66 Lindley v. Horton (1858) 27 Conn. 58. 67 Wertz v. Lawrence (1919) 66 Colo. 55, 179 Pac. 813. 68 Spears v. McCoy (1913) 155 Ky. 1, 159 S. W. 610. 69 Mainly in judicial and governmental matters.-Cooley on Torts (3rd Ed.) 425-434. 70 Newell, Lib. & Sland. (3rd Ed.) 477. 71 Harwood v. Keech (1875) 4 Hun (N. Y.) 389-patron's defamation of teacher in statement to trustees; Thompson v. Bridges (1925) 209 Ky. 710, 273 S. W. 529-defamation of a principal in a parent-teacher's association meeting. Authority in Relation to Pupils and Teachers 185 But the falsity of the words alone do not give rise to an inference of malice, the presumption being that the statements were made in good faith.72 Honest belief in the truth of the accusation protects the defamer through his privilege, nor is it always held necessary that there be reasonable grounds for such belief.73 ~110. APPLICATION OF PRINCIPLES OF LIBEL AND SLANDER -TO CHARGES AGAINST TEACHERS GENERALLY. A false charge against a teacher of incompetency and immorality is actionable per se. But communications of school officers containing such charges are not absolutely but only conditionally privileged, and the privilege must be shown by such officers and if they do not do so, they are not protected.74 The statements of a school officer to members of the public generally or to other school officers in the presence of third persons are not even conditionally privileged. So where a director and president of a school board falsely said of a teacher to third persons and in the presence of third persons, "We would not use her on account of her immorality;-she was expelled from another school because she got to fooling around with some big boys;-I told her she would be a pretty thing to employ in a school room if there was a lot of big boys; she would just make a plaything for them," the words were held actional per se, unprivileged, and $2000 damages were held not excessive.75 But to write of a teacher that he "has done more damage and less good than any other teacher," and in referring to his application for a position to teach, "this district knows when it has had enough, so it turned the gentleman down," has been held not libelous per se, because it "cannot be said to impeach him in any of those qualities which are essential of an accomplished school teacher,... does not disparage the plaintiff in, or impute to him a 72Lewis v. Carr (1919) 178 N. C. 578, 101 S. E. 97-bank officers defamation of county school officer; Wieman v. Mabee (1881) 45 Mich. 484, 40 Am. Rep. 477-patron's defamation of teacher in communication to county superintendent; Decker v. Gaylord et al. (1885) 35 Hun (N.Y.) 584-patron's defamation of teacher in communication to school commissioner. 73 Barry v. McCollum (1908) 81 Conn. 293, 70 Atl. 1035-defamation of teacher in superintendent's report. But see: Thompson v. Bridges (1925) 209 Ky. 710, 273 S. W. 529-reasonable or probable grounds for believing required. 74 Ottinger v. Ferrell (1926) 171 Ark. 1085, 287 S. W. 391. 75 Barth v. Hanna (1910) 158 Ill. App. 20. 186 The Legal Authority of the American Public School lack of any of the qualities or qualifications which are prerequisites to the fulfillment of the duties of a school teacher. It does not appear on the face of the publication that the capacity or skill of the plaintiff as a school teacher, his scholarly attainments, or his professional conduct or integrity were in any wise involved."76 In such a case, special damages must be shown, whereas, that is not necessary as in the case above. A school trustee in communicating charges against a teacher of cruelty, incompetency and neglect of duties to a county superintendent is qualifiedly privileged, and if a teacher cannot prove lack of good faith-as by showing the officer knew the charges false-she cannot recover. A teacher dismissed from the schools of Washington, D. C., petitioned for a writ of mandamus for reinstatement, and the board of education in its return to the petition stated falsely in justification that the teacher "was not sufficiently qualified in all respects to continue to teach," but was "deficient in the necessary academic and pedagogic equipment of a competent teacher." This was held by the United States Supreme Court not to be actionable as against the board members since conditionally privileged, no malice shown nor any lack of probable cause for believing the statements true.78 ~111. SAME-TO COMMUNICATIONS BETWEEN BOARD MEMBERS. The resolutions of a board of education are in their nature privileged communications, and so if such resolutions contain defamatory matter, the school officers will not be liable in the absence of malice. Thus in an Oregon case a teacher and a pupil had been keeping company which arousing comment in the community, caused the board of education to call the teacher before it. The teacher admitted a secret marriage, and was allowed to retain her position the rest of the semester. The whole matter was written up as a resolution and put on the record book, part of the matter getting into the newspapers. The teacher brought action in libel against the school officers.79 It was held that the resolution was in the nature of a qualifiedly privileged communication and, therefore, since 76 Paxton v. Woodward (1904) 31 Mont. 195, 78 Pac. 215, 107 Am. St. Rep. 416. 77 Branaman v. Hinkle (1894) 137 Ind. 496, 37 N. E. 546. 78 Nalle v. Oyster (1913) 230 U. S. 165. 79 Samuelson v. Vinyard (1927) 120 Ore. 197, 251 Pac. 719. Authority in Relation to Pupils and Teachers 187 there was no malice to remove the privilege, the defendants were not liable. It was said: "There was no evidence on the part of either party of any actual malice. The defendants were not personally acquainted with the plaintiff except in a very limited degree on the part of one of them, and the plaintiff does not impute to either of them any personal ill will toward herself. In the discharge of their duties to their district and to the pupils of the schools the defendants had a public official duty to perform. Their resolution was the statement to each other before the clerk whose duty it was to write the proceedings of the meeting and in the presence of their attorney, whom they had authority to employ as counsel in the matter. This was a privileged communication by privileged persons to privileged parties on a privileged subject within the scope of their authority. It gives rise to no cause of action in favor of the plaintiff as for libel." A superintendent of a city school was running for the office of city clerk, which office the board of education did not seem to want him to hold. The superintendent alleged that in order to hamper and humiliate him the board showered him with resolutions ordering him to do and not to do a large number of things, as to stay in his office from 8:30 to 12 o'clock A. M. and from 1 to 5 o'clock P. M., unless otherwise ordered, to prepare an exhibit for the Alaska Yukon Fair, etc. The superintendent alleging that the purpose of this was to humiliate and degrade him, and instituted suit for libel claiming damages of $30,000. In holding that no cause of action lay, the court said: "The appellant contends, however, that no reason or cause existed for the passage of such orders and resolutions, and that the necessities of the occasion or requirements of the situation did not demean this action, and that in fact it was not done out of any solicitude or necessity for the schools, but out of malice and ill will and for the purpose and motives of revenge alone. This proposition brings us face to face with the quaere: Can the motives and purposes of a school board when performing an official act clearly within their powers under the law be put in issue in an action for damages under the charge of a civil libel? The answer must invariably be in the negative. 188 The Legal Authority of the American Public School "They have no right to employ libelous language in the performance of their official duties and cannot shield themselves behind their official character where they have overstepped their authority or exercised official powers in an unlawful manner, but so long as their acts are clearly within the purview of the statute and are such as they have an unquestioned right to perform, they should not be subject to an action for libel on the charge of conspiracy or malice in doing the act. In other words, there can be no legal malice in contemplation of law where the thing done is lawful and the means employed are lawful."80 The various official reports are qualifiedly privileged communications to which the usual rules are applicable. A school trustee stated orally to the other directors certain objections to the rehiring of a teacher, and he was requested to put his objections in writing and formally present it to the board, which he did. The teacher alleging that part of the charges were libellous brought an action against this trustee. The court pointed out that this was a case of conditional privilege and that no malice was present. It was also pointed out that although the purpose of the report was to keep the teacher from being rehired, she was nevertheless rehired, so that even if a recovery could have been allowed, it would only have been a nominal one there being little or no actual injury. In reversing a former judgment for the defendant it was said that "by the publication of the language charged, appellee could not have been brought into public scorn, contempt, or ridicule, because the alleged libel was not given to the public; nor could her reputation have been injured thereby under the facts as found in this case. This being a privileged communication, appellee was not entitled to recover damages for wounded feelings, distress of mind, humiliation, etc."81 The acts of school trustees in taking testimony on charges against a school principal and forwarding the same to the board of education is a privileged communication. Such trustees, the court said, were merely performing a trust imposed upon them by law.82 A committee making by instruction a 80 Barton v. Rogers et al. (1912) 21 Idaho 609, 123 Pac. 478, Ann. Gas. 1913E, 192. 81 Henry v. Moberly (1898) 6 Ind. App. 490, 51 N. E. 497. 82 Galligan v. Kelley (1894) 64 N. Y. St. Rep. 197, 31 N. Y. S. 561. Authority in Relation to Pupils and Teachers 189 report to a district included the following about the plaintiff: "Although A. regarding the gratification of personal pique more than the advancement of the interests of the district, and holding light his honor and duty as a professor of religion, may cause the district much trouble and expense," upon which a suit was brought for libel. But the court in denying recovery held that, "if the report was honestly and fairly made, without malice, and with the design of placing the facts truly before the district for their sanction, and to enable them to judge the proper course to be pusued..., they were justified."83 ~112. SAME -To COMMUNICATIONS TO SUPERIORS. The reports or other official communications of school officers to their superiors such as county or state superintendents are qualifiedly privileged communications, and the school officers making such reports are not liable for defamatory statements therein contained unless bad faith be proved. Thus where a report required by law of school trustees to a county superintendent contained material defamatory to a former trustee, the defendant was held not liable since the report was a privileged one, and no malice was shown. "Anything that an officer says in a report to his superior in the discharge of his duty," said Hobson, J., "is privileged, and no action can be maintained upon it for a libel, unless the plaintiff both avers and proves that the words were used maliciously and without reasonable or probable cause on the part of the officer to believe them true."84 So also where under a statute a county superintendent requested a report on trouble with a school teacher, and the directors replied setting forth false accusations which they believed true, or at least it was not shown they knew it false, there the communication was held privileged and the directors not liable.85 "The communication," said Judge Burges, "was 83 Haight v. Cornell (1842) 15 Conn. 74. 84 Ranson v. West (1907) 125 Ky. 457, 101 S. W. 885, 31 Ky. L. Rep. 82. 85 It was written of the teacher: "... she is totally unfit to teach our school. She is tyrannical and abusive and indecent, and our school is doing no good.... She has whipped unmercifully, pulled their ears, and otherwise mistreated them, until they do not respect her. She has called the children liars..." This is "upon its face clearly defamatory, and if false actionable per se, unless absolutely or qualifiedly privileged." Was held qualifiedly privileged, and-"there was no actual malice proven, and the use of such word or words did not take away the privileged character of the com 190 The Legal Authority of the American Public School made on a proper occasion, from a proper motive, and was based upon a reasonable cause. It was made in apparent good faith, and under these circumstances the law does not imply malice, and as there was no proof of express malice the plaintiff was not entitled to recover." In a recent Kentucky case,86 school trustees wrote a letter to the state superintendent in which they stated that the person who was being proposed to erect a school building was incompetent and asked aid of the superintendent to see that the building was erected by reliable methods. Action was brought by the contractor for libel alleging that the statements were false and malicious and made with the malicious intent to hinder him in securing the contract and to injure him in his business. To this the defendants demurred. The court pointed out that this was a case of qualified privilege. Being qualified and not absolutely privileged, proof of malice would remove the shield of privilege. Therefore, since the defendants admitted by their demurrer both falsity and bad intent, the privilege was removed, and the defendants were liable. ~113. SAME-To PUBLIC DISCUSSION. A public meeting was held in a school district and a committee of five were appointed to examine and report on the financial report of the board of education. A member of the board took exception to some of the statements in the committee's report by means of a newspaper article. A member of the committee answered this in a sarcastic and satiristic manner. The trustee sued him for libel upon this answer. The holding of the court and reasons given were as follows: "If the report was true, it was a matter in which the public were interested in such a manner to make a discussion of its merits proper; and the plaintiff having chosen this forum, the defendant might question his statements of facts and deny them, he might combat his reasoning and show his conclusions ill-drawn, and he might do so with satire and ridicule, so long as he directed those missiles at the article and the contents of it. But he could not attack the private character of the author. To do so would be libelous. munication. Intent makes the libel in such circumstances."-Finley v. Steele (1900) 159 Mo. 299, 60 S. W. 108, 52 L. R. S. 852. 86 Bonham v. Dotson et al. (1926) 216 Ky. 660, 288 S. W. 297. uthoity in Relation to Pupils and Teachers 1 191 "The question is, were the facts true, as stated by the committee? And upon this question there is no evidence which does not support the letter of the report. The original report being true, and the subsequent discussion being based upon the facts of the original report, there could be no libel unless the defendant went outside of the facts in the discussion. A careful examination of the whole question convinces us that the defendant did not more than to insist upon the facts as shown by the report, and to demand that the plaintiff make an explanation of the facts to show why the sum of $1,098.87 ought not to be charged back upon the trustees. That amount of money has been lost to the district. It was paid by a note given, apparently, for that particular purpose, and that note was paid out of the funds of the school district, and the people of the district have a natural right to an explanation."87 ~114. CHAPTER SUMMARY. When a school injury grows out of a condition resulting from the exercise of official discretion, no individual liability attaches in the absence of malice, but if the injury is the result of neglect as to a ministerial function responsible officers are usually liable unless the negligence of the officer is not the proximate cause of the injury. A school officer lawfully present in a schoolroom may, in the absence of the teacher, eject a pupil for swearing and insubordination, using the force necessary for that purpose, but a school director who encourages or assists a teacher in an unlawful and tortious chastisement of a pupil will be liable with the teacher as a joint tort feasor. School officers are not liable in damages to a pupil for an exclusion within their jurisdiction resulting from error in judgment in the absence of wanton conduct or malicious motives; nor, of course, for a lawful exclusion. A parent cannot recover damages for an unlawful exclusion of a child unless he has himself suffered direct pecuniary loss as from loss of services. School officers act with quasi-judicial discretion in dismissing teachers and are therefore not liable if acting in good faith, in honest discharge of duty and within their jurisdiction. If a teacher has been lawfully dismissed a school officer will not be liable for using sufficient force to keep him out 87 Lent v. Underhill (1900) 54 App. Div. 609, 66 N. Y. S. 1086. 192 The Legal Authority of the American Public School of the building, but if the teacher is rightfully in possession a school officer is liable for assault and battery for forcible ejection. A person is liable for the defamation of another's character by false accusations unless the occasion is a privileged one. School communications are usually qualifiedly privileged, and hence school officers are protected from liability unless it be shown that malice is present which destroys the privilege. This qualified privilege extends to communications between board members, communications to superiors and to statements in public discussion. CHAPTER IX The Legal Authority of Teachers and School Administrators as Shown by the General Rules of Tort Liability Analysis of Chapter SECTION PAGE Scope of chapter...................................................................... 115 193 Legal status and authority of teachers................................. 116 194 Liability for wrongful suspension and expulsion................ 117 197 Liability for detention of pupils........................................ 118 201 Liability of a teacher for refusal to instruct a pupil........ 119 203 Liability of discharged teachers remaining in school........ 120 ' 204 Liability for libel and slander Communications of superintendents and principals on the character of teachers................................... 121 204 Comments on character of pupils................................. 122 207 Teacher's criticisms of other instructors..................... 123 209 Teacher's comments on the character of board members................................................................... 124 209 Liability of teachers for causing the school corporation monetary loss............................................ 125 209 Liability of teachers to injured tradesmen.......................... 126 210 Chapter summ ary...................................................................... 127 212 ~115. SCOPE OF CHAPTER. We have considered the tort liability of the school corporation itself and the tort. liability of the officers of that corporation. It is the purpose of this chapter to set forth the liability of school superintendents, principals and teachers-the employees of the corporation. Because the cases make no differentiation in their legal principles between superintendents, principal, or teacher, the word teacher is here used as embracing the school administrators also. Before approaching in the preceding chapters the discussion of the legal jurisdiction of school administrative officer and his responsibility to damages, the necessity of defining the legal status of such an officer was pointed out. The same is true here. Hence we must first regard the legal position of the public school teacher. This done we may contemplate the extent of the teacher's legal authority and tort liability. 194 The Legal Authority of the American Public School ~116. LEGAL STATUS AND AUTHORITY OF TEACHERS.1 Properly speaking, a teacher is not a public officer but is merely the employee of the school corporation in the service of which he is hired, not appointed.2 But to a certain extent a teacher is a public administrative officer and he also stands in a certain domestic relation to his pupils. In a fashion, the teacher is regarded as standing in the place of the parent- in loco parentis.3 "The teacher of a school, as to the children of his school while under his care, occupies for the time being the position of parent or guardian."4 "A teacher is the substitute of the parent; is charged in part with the performance of his duties, and in the exercise of these delegated duties is invested with his power."5 A teacher has, therefore, the power necessary to properly govern and conduct his school and in the absence of rules made by the board the teacher may prescribe his own reasonable regulations. Having such power, teachers have, of course, the authority to enforce them and to punish their infraction as well as the violation of the rules of the board of education.6 Thus it has been said by the Wisconsin court: "While the principal or teacher in charge of a public school is subordinate to the school board or board of education of his district or city, and must enforce rules and regulations adopted by the board for the government of the school, and execute all its lawful orders in that behalf, he does not derive all his power and authority in the school and over his pupils from the affirmative action of the board. He stands for the time being in loco parentis to his pupils, and because of that relation he 1 Generally speaking the administrative officers of schools stand in the same position as the regular classroom teachers. Therefore no division is here made as to superintendent, principal and teacher but the term teacher alone is used with the understanding that the principles announced apply equally to the administrative officers. However, as exceptions occur they will be pointed out. 2Swartwood v. Walbridge (1890) 57 Hun 33, 10 N. Y. S. 862; see ante, p. 177, et seq. 3 Dannenhoffer v. State (1879) 69 Ind. 295, 35 Am. Rep. 216. 4 State ex rel. Beaty v. Randall (1899) 79 Mo. App. 226. 5 State v. Pendergrass (1837) 19 N. C. 348, 31 Am. Rep. 416. Fertich v. Michener (1887) 111 Ind. 472, 60 Am. Rep. 709; State ex rel. Crain v. Hamilton (1890) 42 Mo. App. 24; State ex rel. Beaty v. Randall (1899) 79 Mo. App. 226; Patterson v. Nutter (1886) 78 Me. 509, 7 Atl. 273, 57 Am. Rep. 818; State ex rel. Burfee v. Burton (1878) 45 Wis. 150, 30 Am. Rep. 706. Legal Authority of Teachers and Administrators 195 must necessarily exercise authority over them in many things concerning which the board may have remained silent. In the school, as in the family, there exist on the part of the pupils the obligations of obedience to lawful commands, subordination, civil deportment, respect for the rights of other pupils, and fidelity to duty. These obligations are inherent in any proper school system, and constitute, so to speak, the common law of the school. Every pupil is presumed to know this law, and is subject to it whether it has or has not been reenacted by the district board in the form of written rules which would cover all cases of insubordination and all acts of vicious tendency which the teacher is liable to encounter daily and hourly."7 The Cyclopedia of Law and Procedure gives the following concise statement: "As a general rule a school teacher, to a limited extent, at least, stands in loco parentis to pupils under his charge, and may exercise such powers of control, restraint and correction over them as may be reasonably necessary to enable him to properly perform his duties as teacher and accomplish the purpose of education, and if nothing unreasonable is demanded, he has the right to direct how and when each pupil shall attend to his appropriate duties, and the manner in which a pupil shall demean himself, and consequently may adopt any reasonable rule or regulation concerning matters not provided for by the rules prescribed by the school board and not inconsistent with some statute or other prescribed rule."8 This authority of the teacher extends over all who enter school to receive instruction there, and therefore, it extends to 7 State ex ret. Burfee v. Burton, supra. 8 35 Cyc. 1134. "... any reasonable rule adopted by a superintendent, or a teacher merely, not inconsistent with some statute or other prescribed higher authority, is binding upon the pupils."-Fertich v. Michener (1887) 111 Ind. 472, 60 Am. Rep. 709. "In the absence of a rule or rules prescribing the names and methods of punishment, the teacher is authorized to inflict such humane and reasonable punishment to enforce the rules of the board and good discipline and order, as he may deem most conducive to these ends...."-State ex ret. Beaty v. Randall (1899) 79 Mo. App. 226. "What rules, what commands, and what punishments shall be imposed are necessarily largely within the discretion of the master, where none are defined by the school board."-Patterson v. Nutter (1886) 78 Me. 509, 7 Atl. 273, 57 Am. Rep. 818. 196 The Legal Authority of the American Public School adults under the teacher's tutelage.9 Nor does the teacher's authority extend only over the pupils when within the schoolroom or on the school grounds. His control extends to the pupils on their way to and from school, and sometimes even into the home.10 The test as to whether or not a teacher's authority extends over a particular matter outside and away from school is: does it affect the harmony, government or management of the school? If it does, the teacher may control.ll Thus a teacher was held authorized to punish boys for fighting in violation of a school rule away from the schoolhouse and not during school hours,12 and to punish a boy who abused small girls who were returning from school although the boy had already reached his home.13 A teacher was held empowered to punish a boy who, when driving his father's cow by the master's house after school, shouted in the presence of the teacher and some fellow pupils, "Old Jack Seaver."14 So also if a pupil has in fact withdrawn from school but still attends, the teacher having no notice of the withdrawal, the teacher may treat him as a pupil and punish him if necessary.15 But the authority of the school must not unlawfully invade parental rights.16 So if a parent makes a lawful selection of studies for his child, requesting that he shall not pursue a certain study the parent's desire is paramount to the teacher's order to the contrary.17 The peculiar confidential and intimate relation that exists between a teacher as a substitute parent or a guardian and the pupil as his ward extends beyond the school and still exists where the relation of teacher and pupil proper does not. So a statute which provides a penalty for a guardian who shall 9 Stevens v. Fassett (1847) 27 Me. (14 Shep.) 266; State v. Mizner (1878) 45 Iowa 248, 32 Am. Rep. 128. 10 See ante, p. 62, et seq. Lander v. Seaver (1859) 32 Vt. 114, 76 Am. Dec. 156; Deskins v. Gose (1885) 85 Mo. 485, 55 Am. Rep. 387; Hutton v. State (1887) 23 Tex. App. 386, 5 S. W. 122, 59 Am. Rep. 776; O'Rourke v. Walker (1925) 102 Conn. 130, 128 Atl. 25; Dodd v. State (1910) 94 Ark. 297, 126 S. W. 834. 11 See ante, p. 62, et seq. 12 Hutton v. State, supra. 3 O'Rourke v. Walker, supra. 14 Lander v. Seaver, supra. 15 Dodd v. State, supra. 16 See ante, p. 62, et seq. 17 Morrow v. Wood (1874) 35 Wis. 59, 17 Am. Rep. 471. Legal Authority of Teachers and Administrators 197 have defiled a female under eighteen years of age under his care has been held to apply to teachers who have had illicit relations with girl pupils, even though such occurrences have taken place outside of school hours in the pupil's home and on Sundays. Setting this matter forth very clearly, the Supreme Court of Missouri has said: "In other words, we are unwilling to say that where a teacher has in his charge girl pupils of tender age, so long as they are in the schoolroom, or on their way home from school, they are under his care and protection; but so soon as they reach the paternal roof, his care and duty of protection of them is shaken off, and he is no longer subject to the penalties of the statute for defiling the pupil. The confidential relation of teacher and pupil exists as well after the child reaches home as it does in the schoolroom. It exists on Sunday as well as on school day. The evil intended to be prevented is the abuse of the confidential relation, and that exists wherever they may be on all occasions, as long as the relation of teacher and pupil is in existence. "The essence of the offense created by the statute is the violation and abuse of a trust relation; in other words, it is to prevent those, by reason of their positions, who have a stronger influence than they would otherwise possess, over girls of tender years, from exercising such influence improperly. We can conceive of the creation of no higher trust than that of parents confiding the care of their children to the teacher. If the care and protection contemplated by the statute, as applicable to teachers of the youth of the country, simply means that they are confided in their care for the purpose of teaching them each day for a few hours, and that is the end of their duty, and constitutes a faithful performance of all the duties imposed by reason of the relation of teacher and pupil, then we confess an absolute misconception of the duties resting upon those in charge of schools as teachers."'8 ~117. LIABILITY FOR UNLAWFUL SUSPENSION OR EXPULSION.19 The question of liability for suspension or expulsion 18 State v. Hesterly (1904) 182 Mo. 16, 81 S. W. 624, 103 Am. St. Rep. 634; State v. Oakes (1907) 202 Mo. 86, 100 S. W. 434. 19 For suspension and expulsion generally see: ante, p. 58 et seq. and ~103, p. 168 et seq. 198 The Legal Authority of the American Public School depends first of all upon whether such exclusion is a warranted one or not. So if it is held the cause of the exclusion is a legally sufficient one there will be no liability. Thus where a superintendent suspended two pupils for violating a rule made by himself and the school board as to absence and tardiness neither he nor the directors were held liable since the rule was declared a reasonable one.20 A rule prescribed by a board of education that if any pupil should fail to be prepared with a rhetorical exercise at the time appointed, he should, unless excused on account of sickness or other reasonable cause, be immediately suspended from the department in which the subject was held a reasonable rule. Therefore neither the board of education nor the teacher was held liable in damages for a suspension under the rule.2' But when the exclusion has been held to be an unlawful one, teachers have been held liable in damages to the excluded pupil. This occurs usually when the determination of the requirement, the violation of which caused the exclusion, has not required the exercise of discretion on the part of the teacher. Thus, a teacher acting under the direction of the school board expelled a pupil because her parents refused to pay a fee of one dollar a month to supplement the teacher's salary. Such a fee was an illegal one, and hence the expulsion was also illegal, subjecting, therefore, the teacher to liability in damages to the pupil.22 The fact that the teacher acted under the direction of the school board was held to make no difference, the judge saying: The teacher "must be charged in law with a knowledge of the unlawful character of his act. As a joint tort feasor with the school board he is liable, notwithstanding their direction in the premises. There can be no innocent agency in the commission of an act upon its face unlawful and tortious. 20 The rule was: "Rule 10-Any pupil who is absent six half days in any consecutive four weeks, and two times tardy, shall be counted as one absent, unless detained by sickness or other unavoidable cause, and shall be suspended from the schools until the end of the term, or until reinstated by the superintendent or the board."-Burdick v. Babcock et al. (1871) 31 Iowa 564. 21 Sewell v. Defiance Union School Bd. of Ed. (1876) 29 Ohio St. 89. See also: Douglass v. Campbell (1909) 89 Ark. 254, 116 S. W. 211, 20 L. R. A. (N. S.) 205. 22 Williams v. Smith (1915) 192 Ala. 428, 68 So. 323. Legal Authority of Teachers and Administrators 199 "In matters of discipline, teachers and masters of schools exercise a discretion for which, in the absence of abuse, they cannot be held to answer. But that principle is of no avail to appellant, for the reason that he was not exercising his right of discipline, but rather, in a case where there was no appearance of an occasion or excuse for discipline, for the sole purpose of enforcing an unlawful demand, he deprived appellees of a valuable right or privilege which by law and without price is extended to all the children of the state." School directors being empowered to expel only for reason of disobedience, refractory or incorrigibly bad conduct expelled a pupil for refusing, by direction of her parents, to study bookkeeping. The principal of the school forcibly ejected the pupil and action was taken against both the principal and the directors.3 Because this was held to be an unlawful cause for expulsion, the act of the principal became a trespass for which both he and the directors were liable. "The directors," said the court, "had no power to expel appellee from the school and its privileges and benefits, because she, under the direction of her parents refused to study bookkeeping, as it is not one of the branches enumerated in the statute, and is one her parents had the option to have taught her, as the directors had provided that it should be taught in the school; and the directors having no such power, they could not lawfully expel appellee from the benefits and privileges of the school, for a refusal to comply with this requirement, and when they did so with force, it constituted a trespass. What they did by the teacher, they did by themselves, according to a familiar maxim of the law. Nor could the teacher justify under the authority of the directors, as they could not, under the law authorize him to perform an illegal act, as this was, and having committed the trespass they are liable to respond in damages."24 Thus, also, a superintendent of the Chicago schools was held to respond in damages to a pupil expelled for refusing to undergo vaccination.25 This exclusion was held unlawful since vaccination could not be made a condition precedent to the right of a child to attend a public school and by rule of the 23 Rulison v. Post (1875) 79 Ill. 567. 24Ibid. 26 Burroughs v. Mortenson (1924) 312 Ill. 163, 143 N. E. 457. 200 The Legal Authority of the American Public School board vaccination might be required only during the danger of an epidemic. Here, then, is an illustration of one vested with discretion acting outside his discretion and is therefore liable. "This exclusion," said the court, "must be regarded as the sole act of the superintendent, which finds no authority in any rule or regulation affecting his action. It was an arbitrary act because resting upon no rule of law but depending only on the discretion of the superintendent to whom the law has granted no such discretion." It also appears that a teacher may be liable if she stands passively by and allows a tort to be committed in her presence. A teacher sent certain children home on two occasions telling them that they were expelled. Each time they returned. But on the third morning a trustee appeared with a strap and threatening to use it forced the children to leave. It seems the expulsion was unlawful and the question arose as to the liability of the teacher with the trustee. The teacher had not summoned the trustee, nor did she take part, but the court announced the following rule: "All who aid, advise, command or countenance the commission of a tort by another, or who approve of it after it is done, are liable, if done in their benefit, in the same manner as if they had done the act with their own hands; and proof that a person is present at the commission of a trespass without approving or disapproving of it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance, and approved of it, and was thereby aiding and abetting the same."26 Although the court felt the case without substantial merit, it felt forced to the conclusion that under this rule the teacher must be held liable. In the instances mentioned above, liability attached because the exclusion was unlawful by excess of authority. So where the question is one within the jurisdiction of the teacher or school officers, since involving exercise of discretion, it would be natural to expect no liability to result for an unlawful exclusion through error in judgment. This is so. Thus in 26 Mack v. Kelsey (1889) 61 Vt. 399. Legal Authority of Teachers and Administrators 201 Churchill v. Fewkes, an Illinois case,27 it was held that no action lay for an erroneous expulsion unless bad faith was also shown, since a discretionary officer is not liable for errors in judgment alone. So also in another Illinois case where a pupil was expelled through error in judgment, no malice being shown, and an action had been taken against the teacher and school directors, it was said that since the declaration did not aver that the defendants acted either wantonly or maliciously, the judgment must be for the defendants. It was not enough, the court said, to show mere error of judgment without malice, discretionary officers not being liable for honest errors of judgment within their authority.28 A superintendent and a principal preferred certain charges against several high school boys to the board of education and asked that an example be made of them. The board acting upon this urge expelled one of the boys who thereupon brought action for damages against the directors and the superintendent and principal.29 The directors were held not liable since they were acting in a quasi-judicial capacity, and the question of the liability of the superintendent and principal arose, which the court settled by saying: "The liability of the head master and superintendent remains to be considered. It is held that conduct in bringing about a judgment is not actionable while the judgment is in force. This is not only the rule in cases of malicious prosecution, but also in other cases where the conduct is inherently wrongful. The result is that these two defendants are exonerated. "Whether the decision of these defendants to present the charge against the boys to the school board and prosecute it, was a judicial act, within their respective official duties does not need to be considered, and no opinion is expressed on their liability if the dismissal were set aside or corrected." ~118. LIABILITY FOR DETENTION OF PUPILS. Pupils are 27 (1883) 13 Ill. App. 520. 28 McCormick v. Burt (1880) 95 Ill. 263, 35 Am. Rep. 163. See also: Dritt v. Snodgrass (1877) 66 Mo. 286, 27 Am. Rep. 343; Fertich v. Michener (1887) 111 Ind. 472, 60 Am. Rep. 709; Sweeney v. Young (1925)........ N. H........ 131 Atl. 155, 42 L. R. A. 757. Also: ante, p........ 29 Sweeney v. Young, supra. 202 The Legal Authority of the American Public School frequently detained within the schoolroom for a given length of time as a means of correction. It would appear that there can be no liability as for false imprisonment for a reasonable detention made with proper motives. It was said in an Indiana case: "The detention or keeping in of pupils for a short time after the rest of the class has been dismissed, or the school has closed, as a penalty for some misconduct, shortcoming, or mere omission, has been very generally adopted by the schools, especially those of the lower grade, and it is now one of the recognized methods of enforcing discipline and promoting the progress of the pupils in the common schools of the State. It is a mild and non-aggressive method of imposing a penalty; and inflicts no disgrace upon the pupil. The additional time thus spent in studying his lessons presumably inures to the benefit of the pupil. However mistaken a teacher may be as to the justice or propriety of imposing such a penalty at any particular time, it has none of the elements of false imprisonment about it unless imposed from wanton, willful or malicious motives."30 It is seen that the view taken in this case is parallel to those cases that hold a teacher not liable for excessive corporal punishment if done with good and honest motives. It would seem, therefore, that, parallel to those corporal punishment cases that set the limit of corporal punishment at what a reasonable man would think moderate, certain jurisdictions might be expected to hold that detention must also come within the rule of reasonableness. From the Indiana case above, and from the holdings in the corporal punishment cases, it may be taken that a teacher will, as a general rule, be held liable for wanton and malicious detention. But an exception will be noted in that although the detention be wrongful such detention must be against the will of the child before liability accrues in the suit by such child. Thus in an English case where a pupil was detained at a school over a holiday the teacher was held not liable for false imprisonment because it was not shown that the pupil knew of his detention. 80 Fertich v. Michener (1887) 111 Ind. 472, 60 Am. Rep. 709. 31 Herring v. Boyle (1834) 1 Cromp. M. & R. 376. Legal Authority of Teachers and Administrators 203 ~119. LIABILITY OF A TEACHER FOR REFUSAL TO INSTRUCT A PUPIL. There is no contract, express or implied, between a teacher and his pupils whereby the teacher may be liable for breach in refusal to instruct a pupil. Thus, where school directors had determined that a certain system of writing should be used a teacher refused to instruct a child in any subject because it, by direction of its parent, refused to write. Action was brought as on a contract against the teacher but the court held that there was no such contract. If the teacher is liable at all, said the court, it could only be in an action on the case for trespass.32 But in an early Massachusetts case where a teacher refused to instruct a child action was brought for damages against the teacher on the contention that the right to be instructed was an absolute one and that a refusal by the master to receive and instruct was a violation of such a personal right as allowed an action for damages.33 The court refused to allow the recovery on the grounds that such an allowance would compel the teacher on peril of an action for damages to accept and instruct pupils which the school committee might determine unfit for admission; and that the refusal to instruct was not such a breach of public duty that a recovery would be allowed to one sustaining injury thereby. The ground of public policy was made an important reason for denial of recovery. The court said, "The argument from inconvenience against such an action is also extremely forcible. If one member of the school district may have an action against the master, every member has the same right; if he may sue for a general refusal to receive and instruct a child, there seems to be no reason why an action will not lie in case the master does not instruct with due skill, capacity and diligence. Such a state of things would not be likely to improve the condition of the schools, and would lead to vexatious and ruinous litigation." Appeal to the committee was said to be the proper course and if the master refused to follow the decision of the committee recourse could be had on the teacher's contract with the board. "The law will not presume," said the court, "that the committee who are invested with the power of superintendence and management will act arbitrarily and unjustly, in a 32 Stuckley v. Churchman (1878) 2 Ill. App. (2 Bradw.) 584. 33 Spear v. Cummings (1839) 23 Pick. 224, 34 Am. Dec. 53. 204 The Legal Authority of the American Public School matter submitted to their judgment. If, after all, there should be found practically a danger of an encroachment upon private rights in a matter in which the whole community has so deep an interest, it is for the legislature to provide more ample and specific security against such danger." ~120. LIABILITY OF DISMISSED TEACHERS REMAINING IN SCHOOL. We have seen that a teacher may be dismissed at any time, in the absence of contrary statute.34 Therefore when a teacher is dismissed in violation of his contract his course is to leave the school and obtain redress on his contract. The teacher must not stay in the school building and attempt to defy the school officers. The teacher thus becomes a stranger in possession and as such will be liable for trespass.35 ~121. LIABILITY FOR LIBEL AND SLANDER36-COMMUNICATIONS OF SUPERINTENDENTS AND PRINCIPALS ON THE CHARACTER OF TEACHERS. The official communications of a school superintendent or principal concerning the character of the teachers under his charge are qualifiedly privileged and therefore come under the general rules of such conditional privilege. It may be laid down as a general rule, therefore, that superintendents or principals of schools are not liable in damages to a teacher injured by false statements concerning such teacher made without malice in official communications; but that bad motive will remove such privilege, subjecting such superintendent to liability.37 Thus, a report of a superintendent to a board of education on the efficiency of a teacher is qualifiedly privileged.38 So is the report of a principal to his superintendent in which he characterizes a teacher's blackboard work as "careless"; and a later letter of the superintendent saying the principal's opin34 Ante, p. 177, et seq. 35 Kelderhouse v. Brown (1886) 17 Abb. N. C. 401. 36 For general principles of tort liability for libel and slander, see ante, p. 182, et seq. 37 Connecticut: Barry v. McCollum (1908) 81 Conn. 293, 70 Atl. 1035. Illinois: Raush v. Anderson (1898) 75 Ill. App. 526. Kentucky: Tanner v. Stevenson (1910) 138 Ky. 578, 128 S. W. 878, 30 L. R. A. (N. S.) 200. Michigan: O'Connor v. Sill (1886) 60 Mich. 175, 27 N. W. 13. New York: Walker v. Best (1905) 107 App. Div. 304, 95 N. Y. S. 151. 38 Barry v. McCollum, supra. Legal Authority of Teachers and Administrators 205 ion is "pretty nearly correct."39 The communication of a county superintendent of the reasons for revoking a teacher's contract to the employing board at a public meeting is qualifiedly privileged,40 as also is the communication by a county superintendent to the state superintendent to the effect that a license out not issue to a teacher because such teacher is of an immoral character. A superintendent may even be qualifiedly privileged in publicly announcing his views of the qualifications of a teacher under certain circumstances. Thus a superintendent's action in dismissing a teacher was criticised in a newspaper article. In order to defend himself the superintendent answered in which he set out as justification his estimate of the teacher saying that she was not a successful teacher of drawing, was infirm in temper, had a vaccilating disposition and was therefore unfitted to teach. This was held a privileged occasion and the matter not libelous as to the teacher.42 The superintendent, it was said, was within his rights to defend himself upon the attack against his action. This he could not do without showing his opinion of the teacher. If the criticism of the teacher had been beyond the bounds of legitimate criticism, or if it had been shown that the superintendent had been actuated by malice, he would have been held. In the case of Raush v. Anderson,43 the court said on the effect of malice, "In nearly all the adjudicated cases on this subject the principle seems to be recognized that proof of express malice will defeat the defense of privilege; that the doctrine of 'privileged communications' merely changes the rule of evidence rebutting the presumption of malice arising from the speaking of defamatory words which would otherwise be actionable per se, and imposing upon the injured party the burden of proving actual or express malice. Whether such malice did or did not actuate and induce the publication is a question for the determination of the jury." Thus, where a county superintendent was shown to have been actuated by malice in writing to a state superintendent 39 Walker v. Best, supra. 40 Raush v. Anderson, supra. 41 Tanner v. Stevenson, supra. 42 O'Connor v. Sill, supra. 43Supra. 206 The Legal Authority of the American Public School requesting that a teacher be denied a certificate because of immoral character, the otherwise qualified privilege was removed and the superintendent was required to pay the teacher damages.44 It was said as dictum in the above case that a person to remain qualifiedly privileged must have reasonable grounds to believe what he speaks or writes is true. A number of American cases hold this view, and it is submitted that it is the one supported by the best reasoning.45 But another group of cases is illustrated by the school case, Barry v. McCullum, where it was held a superintendent need not have good or reasonable grounds for believing his statements about a teacher true. It was said: "Nor was it necessary for the defendant's justification that he should have had what might seem to the jury good reason or reasonable grounds for the injurious statements contained in his report. It was enough if he honestly and in good faith, at the time when he made them, believed them to be true. This required nothing more than that there were grounds for such belief which then seemed to him reasonable and sufficient, and that his motive in making the publication was an honest desire to discharge the duties of his office with fidelity."46 Of course, if the language used is not defamatory per se and it be not shown that special damages were incurred no liability results. So a statement that at worst falsely charged a principal with having formed an adverse judgment of the work and qualifications of a grade teacher was not defamatory. Discussing this point in Cleary v. Webster, the Supreme Court of Minnesota said: "The utmost charged then, within the limits of construction permitted by reason, is that plaintiff has formed, and may not change speedily an adverse judgment of a competent teacher. Assuming the falsity of the charge, how can it be libelous? Plaintiff is not charged with ill will, malicious or otherwise, toward Miss Peake. He is not charged with any improper official or professional conduct or shortcoming. He is not charged with any improper official or pro44 Tanner v. Stevenson (1910) 138 Ky. 578, 128 S. W. 878, 30 L. R. A. (N. S.) 200. 45 Toothaker v. Conant (1898) 91 Me. 438, 40 AtU. 331. 46 (1908) 81 Conn. 293, 70 AtU. 1035. Legal Authority of Teachers and Administrators 207 fessional conduct. He has been charged with what at the worst may be supposed to have been a mistake of judgment, reached in perfect good faith and the exercise of a proper official discretion. So the innuendo is far-fetched, harsh, and beyond anything the language is properly and reasonably susceptible of. Language otherwise innocent cannot be converted into libel, by innuendo giving it a forced and unnatural construction. No permissible construction of the language could have tended to bring plaintiff into disrepute or to have exposed him to public hatred, contempt, or ridicule, within any of the accepted definitions of libel...."47 So also a charge of "carelessness" is not libelous per se, such as a charge of unskillfulness or general incapacity might be.48 ~122. SAME-COMMENTS ON CHARACTER OF PUPILS. In view of the frequency with which teachers make and are called upon to make comments and reports on the character of their pupils, it is singular that so little litigation has arisen. Out of the elementary and secondary schools there seems to have come at the present time only one case-that of Dawkins v. Billingsley, from Oklahoma.49 There a teacher wrote following a pupil's name in the school register, which register was to go and did go to the clerk of the board and was also read by others: "Drag all the time; ruined by tobacco and whiskey." The teacher admitted by demurrer that this was false, but contended that he should not be held liable since he believed the truth of the statements at the time, that, therefore, there was no malice present and that the occasion was a conditionally privileged one. But under an Oklahoma statute the court reached "the opinion that the publication complained of here does not come within either provision of this statute, and, if untrue, that it is a false and malicious, unprivileged publication by writing which tends to deprive the plaintiff in error of public confidence and injure him." In other words, it was held that a teacher loses his privilege when he departs from the 47 (1927) 170 Minn. 420, 212 N. W. 898. 48 "The plaintiff is not necessarily injured in her profession by a charge of carelessness in the performance of a particular branch of her work."-Walker v. Best (1905) 107 App. Div. 304, 95 N. Y. S. 151. 49 (1918) 69 Okl. 259, 172 Pac. 69, 12 A. L. R. 147. 208 The Legal Authority of the American Public School strict line of duty and enters statements defamatory per se in his register. This ruling is stricter than might be expected, and other cases indicate more leniency. Thus, where a normal school president, whose duty it was among other things to control the rooming places of the students, investigated a report and informed the keepers of a rooming house that a certain girl must leave, as she was crazy, he was held not liable to the girl's suit since no malice was shown and the president had a conditional privilege.'0 The court said: "We have a defendant who is at the head of a great institution of learning, who is expected, and whose duty it is, so far as he is able, to look after the students attending the school, and to look after their environment. He has relation, too, with the keepers of the rooming houses in which these students find temporary homes. If the defendant, after receiving the communications mentioned from four out of six roomers stopping at the house... had not conferred with the keepers he would have been derelict in his duty. The occasion was privileged." A university president after investigating a report, and finding evidence tending to indicate the reports true, wrote to a student's father stating that his son was being removed from school because he had indecently exposed his person from the window of his room. The president was held to be acting under a qualified privilege. He had the right, it was said, "to write what a reasonably prudent and considerate official of a college would under like circumstances have done and said." Therefore, since there was a total absence of evidence of malice on the part of th4 president he was held not liable in damages.51 For a communication to be conditionally privileged, said the court, "not only must the communication be made in good faith, without malice, upon reasonable grounds, and in answer to inquiry, but in addition thereto it must be made by the defendant either in the protection of his own interest or the performance of a duty to society." These conditions were held met here. But when a teacher in a normal school published in a newspaper concerning a student therein that "by her conduct in 50 Everest v. McKenny (1917) 195 Mich. 649, 162 N. W. 277, L. R. A. 1917D, 779. 51 Baskett v. Crossfield et al. (1921) 190 Ky. 751, 228 S. W. 673. Legal Authority of Teachers and Administrators 209 class, by her behaviour in and around the building, and by her spirit, as exhibited in numberless interviews, she has shown herself tricky and unreliable, and almost destitute of those womanly and honorable characteristics that should be the first requisites in a teacher," there it was held the publication was not privileged but under a statute was prima facie52 false and malicious.63 There is, of course, no question of non-liability where the words are shown not to be defamatory and in such a case the question of privilege is no issue. So where the president of a college said about a girl student who had been suspended but not expelled that "she got to running out at night with the boys; she was out one night in particular until half past seven or eight o'clock and did not come to her supper at all, and on various occasions she was doing the same thing and came in late to supper," it was held that this was not a charge of fornication even though it was also said that, "she would be ruined for life," if the president told all he knew about her.54 ~123. SAME-TEACHER'S CRITICISMS OF OTHER INSTRUCTORS. A false charge of incompetency by a teacher against another teacher is actionable per se. Under usual circumstances there is no privilege for such publication.5 ~124. SAME-TEACHER'S COMMENTS ON THE CHARACTER OF BOARD MEMBERS. Where a high school principal in response to an inquiry wrote to a state educational department concerning school matters in which letter there were remarks uncomplimentary to the president of the school board, there such principal is not liable in an action for libel in the absence of malice for such communication is one of qualified privilege.58 ~125. LIABILITY OF A TEACHER FOR CAUSING THE SCHOOL CORPORATION MONETARY LOSS. A teacher failed to keep the school register in proper order and neglected to fill out all but one of fifty-four statistical inquiries called for. Apportionment 52 "At first view, from the appearance, without contradiction or explanation"-Cyc. Law Diet. 53 Dixon v. Allen (1886) 69 Calif. 527, 11 Pac. 179. 54 Hulley v. Hunt (1912) 607 Fla. 179, 57 So. 607. 55 Price v. Conway (1890) 134 Pa. 340, 19 Atl. 687, 8 L. R. A. 193, 19 Am. St. Rep. 704. 56 Mayer v. Chamberlain (1917) 178 App. Div. 326, 164 N. Y. S. 806. 210 The Legal Authority of the American Public School of school funds was made on the basis of these statistics and so because of the teacher's dereliction the district sustained a loss. It was contended that the teacher need not be paid her wages as a penalty for her neglect. The court held, "that it was not the intention of the legislature to secure the performance of these duties by subjecting the teacher to a forfeiture of wages for non-performance of these duties. The statute is rather directory-pointing out with minuteness the duties to be done and the manner and time of doing them. The fifty-four inquiries require very great minuteness and accuracy in matters of detail connected with school and the district. If the clause we have above quoted works a forfeiture of wages, any omission or neglect in these matters would produce this result. This seems to us a more harsh and severe penalty than the law could have intended to visit upon negligence even in such matters."57 This decision in spite of the fact that the statute "required that the performance of the prescribed duty in respect to the keeping, certifying, and returning to the clerk of the district, of the register, previous to the receipt of the stipulated wages of such teacher," seems strained. It also appears contrary to the views usually taken as to liability for neglect in the performance of a ministerial duty.58 A dissenting opinion, however, held that if in the consequence of such neglect the school corporation should lose a portion of the school money, the teacher should make good the loss. ~126. LIABILITY OF TEACHERS TO INJURED TRADESMEN. If a teacher, principal or superintendent in enforcing a rule of a board of education that pupils go directly to their homes upon dismissal or in making and enforcing their own authorized rules to the same effect thereby causing injury to the trade of a nearby shopkeeper, he is not liable in damages therefor.69 The Michigan case, Jones v. Cody, swung mainly upon the question of the legality of school control over pupils going to and from school. There a principal enforced a rule of the 57 Crosby v. School Dist. No. 9 (1863) 35 Vt. 623. 58 See ante, p. 151, et seq. 59 Jones v. Cody (1902) 132 Mich. 13, 92 N. W. 495, 62 L. R. A. 160; Guethler v. Altman (1901) 26 Ind. App. 587, 60 N.E. 355. Legal Authority of Teachers and Administrators 211 board of education of the City of Detroit. In affirming the right of the school authorities in controlling the children on their way to and from school, and denying recovery against the principal for injury to the plaintiff's trade, the court said: "The dangers to which children are exposed upon the streets of cities are matters of common knowledge. Humanity and the welfare of the country demand that a most watchful safeguard should so far as possible, accompany children, when required or allowed to be on the streets. Parents have a right to understand that their children will be promptly sent home after school, and to believe that something untoward has happened when they do not return in time. In no other way can parents and teachers act in harmony to protect children from bad influences, bad companionship, and bad morals. No tradesman or merchant has the constitutional right to have children remain in his place of business in order that they may spend money there, while they are on their way to and from school The liberty of neither the children nor parent nor trader is at all unlawfully restrained by this rule and its reasonable enforcement. The rule does not interfere with the right of the parent to send his child upon an errand, to a store, or other reputable place, or to the home of a relative or friend to visit. Neither does it restrict the authority of parents over their children. This action on the part of the school board of the City of Detroit and its teachers is fully sustained by the authorities."60 Nor does it appear that the motive of the teacher in forbidding pupils to enter a place of business is of any effect upon the liability of such teacher so long as the rule itself that is being enforced is a lawful one. So where a teacher had malicious motives in dissuading high school students from patronizing a place of business, such malice was declared of no effect upon the teacher's liability. The court said, "It was not an unlawful act for Crull [the teacher] to advise or persuade the pupils not to visit the appellant's store. The fact that he acted maliciously does not change the rule. An act which is lawful in itself, and which violates no right, cannot be made actionable because of the motive which induced it. A malicious motive 60 Supra. 212 The Legal Authority of the American Public School will not make that wrong which in its own essence is lawful."6' The fact that the teacher by his action in effect persuaded the students not to enter into contracts with the shopkeeper afforded no cause of action; although it is true action may sometimes lie for maliciously persuading a party to break a contract.62 ~127. CHAPTER SUMMARY. A teacher has the character of a public officer only to the limited extent of making rules in the absence of regulations made by the school officers, and in the making of decisions such as determining the necessity and extent of punishment. In general, he is merely the employee of the school corporation and is subject almost entirely to its commands. But as to his relation to his pupils, he stands in loco parentis and is invested to a large extent with the duties, rights and privileges of the parent. The authority of the teacher extends over all who enter under him as pupils, and is projected out of the schoof environment proper and to a certain extent even into the jurisdiction of the parent. A teacher may therefore make or enforce reasonable rules, and may punish infractions by suspension or expulsion without incurring civil liability. But this does not mean that pupils may be arbitrarily excluded; if such is the case, or the expulsion be illegal as for a cause prohibited by statute, or otherwise outside the teacher's authority, liability will result. But where the exclusion is merely error in judgment while within his scope of discretion liability does not attach. Teachers are not liable for detention of pupils in good faith -by one view, even though there may be error in judgment;by another, if such detention is a reasonable one. A teacher is not liable in damages for refusal to instruct a pupil, though he may be reached through his contract. Teachers who remain in the school building after being discharged are strangers in possession, and are liable for trespass. Official school communications commenting on the character of teachers, pupils or school officers are qualifiedly privileged and therefore school administrators or teachers who cause the publication are not liable in damages for defamatory 61 Guethler v. Altman, supra. 62 Ibi. Legal Authority of Teachers and Administrators 213 statements therein contained unless actual malice is shown which removes the privilege and subjects the publisher to liability. But where one teacher criticises another falsely and adversely, if there is no privilege, liability attaches. A teacher has been held not liable for neglect in occasioning monetary loss to the school corporation though the neglect was in the performance of a ministerial duty. Teachers enforcing lawful rules that pupils go directly from school to their homes are not liable, even though they have acted maliciously, to tradesmen injured by the resulting diversion of patronage. CHAPTER X The Legal Authority to Inflict Corporal Punishment Analysis of Chapter SECTION PAGE Scope of chapter.................................................................. 128 214 Teacher's right to punish corporally..........-......... 129 214 Sufficiency of cause for punishment................................ 130 217 Liability for causing permanent injury.................. 131 220 No liability for moderate punishment.. —.....-........... 132 222 Liability for excessive or unreasonable punishment........ 133 224 Effect of good motive..........-........... —. 134 229 Effect of bad motive.... —......... 135 231 Liability for punishing corporally adult pupils............... 136 233 Liability of a superintendent.................... 137 234 Chapter summary -......-........-.....-.... 138 235 ~128. SCOPE OF CHAPTER. The preceding chapter was devoted to the general rules of the liability of teachers and school administrators. The matter of the authority of teachers, superintendents and principals in relation to the infliction of corporal punishment is of sufficient importance to warrant separate consideration. This question is treated in detail in this chapter. ~129. TEACHER'S RIGHT TO PUNISH CORPORALLY. It is universally held by common-law that teachers may inflict moderate corporal punishment upon their pupils.1 Judge Enery of the Supreme Court of Maine said in an opinion in 1886: 1 Alabama: Boyd v. State (1890) 88 Ala. 169, 7 So. 268, 16 Am. St. Rep. 31. Arkansas: Dodd v. State (1910) 94 Ark. 297, 126 S. W. 834. Connecticut: O'Rourke v. Walker (1925) 102 Conn. 130, 128 Atl. 25. Indiana: Marlsbary v. State (1894) 10 Ind. App. 21, 37 N. E. 558. Iowa: State v. Mizner (1878) 45 Iowa 248, 32 Am. Rep. 128. Kansas: State v. Ward (1855) 1 Kan. Law J. 370. Maine: Patterson v. Nutter (1886) 78 Me. 509, 7 Atl. 273, 57 Am. Rep. 818. Massachusetts: Commonwealth v. Randall (1855) 4 Gray (Mass.) 36. Missouri: Cook v. Neely (1910) 143 Mo. App. 632,128 S. W. 233. Nebraska: Clasen v. Pruhs (1903) 69 Neb. 278, 95 N. W. 640. New Hampshire: Heritage v. Dodge (1886) 64 N. H. 297, 9 Atl. 722. New York: People v. Petrie (1923) 120 Misc. Rep. 221, 198 N. Y. S. 81. Legal Authority to Inflict Corporal Punishment 215 "Free political institutions are possible only where the great body of the people are moral, intelligent, and habituated to self-control, and to obedience to lawful authority. The permanency of such institutions depends largely upon the efficient instruction and training of children in these virtues. It is to secure this permanency that the state provides schools and teachers. School teachers, therefore, have important duties and functions. Much depends upon their ability, skill, and faithfulness. They must train as well as instruct their pupils. The acquiring of learning is not the only object of our public schools. To become good citizens, children must be taught selfrestraint, obedience, and other civic virtues. To accomplish these desirable ends, the master of a school is necessarily invested with much discretionary power. He is placed in charge sometimes of large numbers of children, perhaps of both sexes, of various ages, temperaments, disposition, and of various degrees of docility and intelligence. He must govern these pupils, quicken the slothful, spur the indolent, restrain the impetuous, and control the stubborn. He must make rules, give commands, and punish disobedience. What rules, what commands, and what punishments shall be imposed are necessarily largely within the discretion of the master, where none are defined by the school board. This power of moderate correction unquestionably includes corporal punishment."2 This power rests upon the fact that the teacher stands in the place of the parent and is therefore vested with a certain degree of the parent's control over the child; it also is grounded upon policy-that a teacher must be in control of his school. A New York court commenting on this recently made the following interesting observation: North Carolina: State v. Thornton (1904) 136 N. C. 610, 48 S. E. 602. Pennsylvania: Commonwealth v. Seed (1852) 5 Clark 78, 4 Am. Law J. (N. S.) 137. Tennessee: Anderson v. State (1859) 40 Tenn. (3 Head) 455, 75 Am. Dec. 774. Texas: (Under statute) Dill v. State (1920) (Tex. Grim. App.) 219 S. W. 481. Vermont: Lander v. Seaver (1859) 32 Vt. 114, 76 Am. Dec. 156. See also: Notes-65 L. R. A. 891; 102 Am. St. Rep. 537; 31 Am. Dec. 419; 76 Am. Dec. 165. Also: 12 Green Bag (1900) 249; 70 Cornell L. Q. (1926) 266; 24 Mich. L. Rev. (1926) 597. 2 Patterson v. Nutter (1886) 78 Me. 509, 7 Atl. 273, 57 Am. Rep. 818. 216 The Legal Authority of the American Public School "A scholar may be punished for refractory conduct, and the teacher is not liable therefor, if the chastisement was, under the circumstances, reasonable. "A teacher must be in authority and have control in a school. If not, there would be no school. Many years ago a learned and judicious school-master said to Charles II in the plenitude of his power: "'Sire, pull off they hat in my school; for if my scholars discover that the king is above me in authority, they will soon cease to respect me.' " "And the king pulled off his hat, to demonstrate, by example, that the schoolmaster's authority should be respected by a king."3 Since the teacher's authority extends beyond the school, he may also corporally punish pupils for acts perpetrated away from the school but which have a direct effect upon the discipline and government of the school.4 Statutes are often silent on the authority of teachers to inflict corporal punishment; some, however, do expressly grant this right.5 Thus the Vermont school laws has the following provision: "A teacher or a principal of a school, or a superintendent or a school director on request of and in the presence of the teacher, may resort to any reasonable form of punishment, including corporal punishment, and to any reasonable degree for the purpose of securing obedience on the part of any child enrolled in such school, or for his correction, or for the purpose of securing or maintaining order in and control of such school." One state, at least, has an express statutory provision forbidding the use of corporal punishment-New Jersey. "No principal, teacher or other person," say the statutes of that 3 People v. Petrie (1923) 120 Misc. Rep. 221, 198 N. Y. S. 81. 4Lander v. Seaver (1859) 32 Vt. 114, 76 Am. Dec. 156; O'Rourke v. Walker (1925) 102 Conn. 130, 128 Ati. 25. 5 Minnesota: School Laws (1927) ~221, p. 65. Montana-School Laws (1927) ~1081, p. 53. New York-Education Law (1928) ~246, appendix, p. 307. Vermont-School Laws (1925) ~1263, p. 41. See also: Florida-School Laws (1925) ~169, p. 58. 6 Supra. Legal Authority to Inflict, Corporal Punishment 217 state, "employed or engaged in any capacity in any school or educational institution, whether public or private, shall inflict or cause to be inflicted corporal punishment upon any pupil attending such school or institution, and every resolution, by-law, rule, ordinance or other act of authority heretofore or hereafter passed, adopted, approved, made or given by any person or persons whomsoever, natural, or artificial, permitting or authorizing corporal punishment to be inflicted upon any pupil attending or that may attend any school or educational institution shall be henceforth void and of no force or effect."7 Although the teacher's right to inflict corporal punishment is recognized, it is by no means an unlimited one. Although the teacher stands in loco parentis his right to punish corporally is more limited than that of the parent. The parent is restrained by a natural affection that is not present in the case of the teacher who is therefore limited to such moderate chastisement as is necessary to answer the purposes of his employment.8 When the teacher exceeds the bounds allowed by law he is rendered liable for the unauthorized injury, hence the following discussion on liability is a sufficient elaboration of the limits of the teacher's power to punish corporally. ~130. SUFFICIENCY OF CAUSE FOR PUNISHMENT. A pupil cannot lawfully be punished wantonly or for an insufficient cause. Such an act is outside the teacher's authority and amounts to an assault and battery for which the teacher is liable. Thus where a pupil at school for his second day, not being acquainted with the rules, spoke aloud a word or two of his lesson and promised to do so no more but was whipped anyway, the teacher was held liable as for an illegal act.9 The judge there said, "It is of first importance that the authority of the schoolmaster should be firmly maintained, but still it must be kept within proper limits. The scholar being helpless, and in the power of the teacher, that power should be restrained, and not allowed to be wantonly abused with impunity. Where this is done, the courts must afford the proper redress, and prevent the temptation from being present to parents and 7 School Law (1925) Art. VIII, ~171, p. 112. 8 Lander v. Seaver (1859) 32 Vt. 114, 76 Am. Dec. 156. 9 Anderson v. State (1859) 40 Tenn. (3 Head) 455, 75 Am. Dec. 774. 218 The Legal Authority of the American Public School relations to take vengeance into their own hands. The government of a school should be patriarchal rather than despotic. If it is a monarchy, it should be a limited one, and not absolute." So a pupil may not be lawfully punished for the misconduct of another.10 So, also, punishment for a cause which is unknown to a pupil, will not be countenanced;" but the previous misconduct of the child may be taken into account, and in such a case where the pupil is well aware of the accumulated grievances of the past, it is not necessary for a teacher to go into an enumeration of these before administering the punishment.12 Punishment cannot be legally administered for the violation of an unreasonable rule. In such a case, there is no legal violation, and chastisement is without sufficient cause. Thus a rule that pupils carelessly breaking or destroying school property must pay for such breakage or destruction was characterized an unreasonable rule, and a teacher's chastisement for its infraction became an assault and battery. "Carelessness on the part of children," said the Supreme Court of Indiana in State v. Vanderbilt, "is one of the most common, and yet one of the least blameworthy, of their faults. In simple carelessness there is no purpose to do wrong. To punish a child for carelessness, in any case, is to punish it where it has no purpose or intent to do wrong, or violate rules."13 Nor can punishment be administered for obedience to lawful commands of a parent, which commands are paramount to those of the teacher.14 Such an act is in excess of authority, is an unjustifiable assault and imposes liability. But corporal punishment may be lawfully administered for such refractory conduct as is detrimental to discipline and effectiveness of the school and is within the authority of the teacher. The causes for which a New England schoolmaster might inflict corporal punishment were thus set forth: "Acts done to deface or injure the school room, to destroy 10 State v. Thornton (1904) 136 N. C. 610, 48 S. E. 602. 11 State v. Mizner (1878) 45 Iowa 248, 32 Am. Rep. 128. 12 Sheehan v. Sturges (1885) 53 Conn. 481, 2 Atl. 841. 13 (1888) 116 Ind. 11, 18 N. E. 266, 9 Am. St. Rep. 820. 14 Morrow v. Wood (1874) 35 Wis. 59, 17 Am. Rep. 471. Legal Authority to Inflict Corporal Punishment 219 the books of the scholars, or the books or apparatus for instruction, or the instruments of punishment of the master; language used to other scholars to stir up disorder and insubordination, to heap odium and disgrace upon the master; writings and pictures placed so as to suggest evil and corrupt language, images and thoughts to those who must frequent the school, the welfare of the scholars and the authority of the master. By common consent and by the universal custom in our New England schools, the master has always been deemed to have the right to punish such offenses. Such power is essential to the preservation of order, decency, decorum and good government in schools."15 Disobedience to a lawful command is held a sufficient cause for punishment-such as violation of reasonable rules.16 Thus, refusal to declaim upon a request to do so was held a sufficient cause.17 Insubordination is a sufficient cause for administration of corporal punishment.18 Impudent and insulting conduct is therefore a sufficient cause.19 A teacher was held authorized to use moderate violence when a pupil took the teacher's chair and refused to leave when so requested.20 Swearing is held to warrant physical punishment,21 and likewise the carrying of concealed weapons.22 The fact that such conduct occurs on the way home from school does not make the teacher liable for punishing therefor,23 nor even that the occurrences take place after the pupils have reached home-just so it can be shown that the acts have a direct injurious effect on the conduct and efficiency of the school.24 A teacher was held not liable for whipping a boy who, when driving his father's cow past the teacher's house, called 15 Lander v. Seaver (1859) 32 Vt. 114, 76 Am. Dec. 156. 16 Dannenhoffer v. State (1879) 69 Ind. 295, 35 Am. Rep. 216; Marlsbary v. State (1894) 10 Ind. App. 21, 37 N. E. 558; Greer v. State (1907) 52 Tex. Grim. Rep. 331, 106 N. W. 359. 17 Kidder v. Chellis (1879) 59 N. H. 473. 18 Vanvactor v. State (1888) 113 Ind. 276,15 N. E. 341, 3 Am. St. Rep. 645; Dannenhoffer v. State, supra. 19 Greer v. State, supra. 20 Stevens v. Fassett (1847) 27 Me. (14 Shep.) 266. - 21 Cook v. Neely (1910) 143 Mo. App. 632, 128 S. W. 233. 22Metcalf v. State (1886) 21 Tex. App. 774, 17 S. W. 142. 23 Deskins v. Gose (1885) 85 Mo. 485, 55 Am. Rep. 387. 240O'Rourke v. Walker (1925) 102 Conn. 130, 128 Atl. 25; Hutton v. State (1887) 23 Tex. App. 386, 5 S. W. 122, 59 Am. Rep. 776; Lander v. Seaver (1859) 32 Vt. 114, 76 Am. Dec. 156. 220 The Legal Authority of the American Public School out derisively in the presence of other pupils, "Old Jack Seaver."25 Here the judge said: "This misbehavior, it is especially to be observed, has a direct and immediate tendency to injure the school, to subvert the master's authority, and to beget disorder and insubordination. It is not misbehavior generally, or towards other persons, or even towards the master in matters in no ways connected with or affecting the school. For, as to such misconduct committed by the child after his return home from school, we think that parents and they alone, have the power of punishment. "But where the offense has a direct and immediate tendency to injure the school and bring the master's authority into contempt, as in this case, when done in the presence of the other scholars and of the master, and with a design to insult him, we think he has the right to punish the scholar for such acts if he comes again to school." So, also, a teacher was held authorized and not liable for corporally punishing a boy who after reaching his home yard abused small girls returning from school.26 Such conduct, it was held, was detrimental to the best interests of the school. ~131. LIABILITY FOR CAUSING PERMANENT INJURY. It is a general rule that a teacher is liable when in punishing a pupil corporally he inflicts a permanent injury.27 Thus it was stated in the North Carolina case, State v. Pendergrass: "The law has not undertaken to prescribe stated punishments for particular offenses, but has consented itself with the general grant of the power of moderate correction, and has confided the graduation of punishments, within the limits of this grant, to the discretion of the teacher. The line which separates moderate correction from immoderate punishment, can only be ascertained by reference to general principles. The welfare of the child is the main purpose for which pain is permitted to be inflicted. Any punishment, therefore, which 25 Lander v. Seaver, supra. 26 O'Rourke v. Walker, supra. 27Boyd v. State (1890) 88 Ala. 169, 7 So. 268, 16 Am. St. Rep. 31; State v. Pendergrass (1837) 19 N. C. 348, 31 Am. Dec. 416; State v. Long (1895) 117 N. C. 791, 23 S. E. 431; Commonwealth v. Fell (1833) 11 Haz. Re. 179; Commonwealth v. Seed (1852) 5 Clark 78, 4 Am. L. J. (N. S.) 137. Legal Authority to Inflict Corporal Punishment 221 may seriously endanger life, limbs or health, or shall disfigure the child, or cause any other permanent injury, may be pronounced in itself immoderate, as not only being unnecessary for, but inconsistent with, the purpose for which correction is authorized." So where death occurs as a result of excessive punishment the teacher will be liable not only for assault and battery, but may also be held for manslaughter, or even murder according to the circumstances of each case.28 An exception to the general rule must be noted. Where the resulting permanent injury is one caused by some unknown defect or weakness in the pupil's constitution of which the teacher has had no notice or warning, the teacher will not be held.29 So it has also been held that if a teacher inflicts a permanent injury on a pupil, he will not be liable unless he might reasonably have foreseen that some such injury might reasonably be expected as a result of his act.30 A pupil in a class was inattentive and had his head turned away from the teacher who threw his pencil at him. The pupil turned his head just in time to be struck in an eye by the point of the pencil which blinded that eye. Discussing the liability of the teacher here, the judge said: "It is undoubtedly true that a teacher is liable if, in correcting or disciplining a pupil, he acts maliciously, or inflicts a permanent injury; but he has the authority to correct his pupil when he is disobedient or inattentive to his duties, and any act, done in the exercise of this authority, and not prompted by malice, is not actionable, though it may cause permanent injury, unless a person of ordinary prudence could reasonably foresee that a permanent injury of some kind would naturally or probably result from the act. There is a distinction, we think, between the case of an injury inflicted in the performance of a lawful act and one in which the act causing the injury is in itself unlawful, or is at least, a willful wrong. In the latter case the defendant is liable for any consequence that may follow from his act as the proximate cause thereof, 28 Boyd v. State, supra. 29 Quinn v. Nolan (1879) 7 Ohio Dec. Reprint 585, 4 Wkly. Law Bul. 81; Ely v. State (1913) 68 Tex. Grim. Rep. 562, 152 S. W. 631. 30 Drum v. Miller (1904) 135 N. C. 204, 47 S. E. 42, 65 L. R. A. 890, 102 Am. St. Rep. 528. 222 The Legal Authority of the American Public School whether he could foresee or anticipate it or not; but when the act is lawful, the liability depends, not upon the particular consequence or result that may flow from it, but upon the ability of a prudent man, in the exercise of ordinary care, to foresee that injury or damage will naturally or probably be the result of his act. In the one case he is presumed to intend the consequence of his unlawful act, but in the other, while the act is unlawful, it must be performed in a careful manner, otherwise it becomes unlawful, if a prudent man, in the exercise of proper care, can foresee that it will naturally or probably cause injury to another, though it is' not necessary the evil result should be in form, foreseen." ~132. No LIABILITY FOR MODERATE PUNISHMENT. A teacher is universally held, in absence of contrary statute, not liable in damages to a pupil moderately and reasonably chastised in a kindly spirit, for a sufficient cause, temporary pain alone being inflicted.31 Thus, it was said in an Indiana case: "The books commonly assume that a teacher has the same right to chastise his pupil that a parent has to thus punish his child. But that is only true 3 Connecticut: Sheehan v. Sturges (1885) 53 Conn. 481, 2 Atl. 841; O'Rourke v. Walker (1925) 102 Conn. 130, 128 Atl. 25. Indiana: Cooper v. McJunkin (1853) 4 Ind. 290; Dannenhoffer v. State (1879) 69 Ind. 295, 35 Am. Rep. 216; Vanvactor v. State (1888) 113 Ind. 276, 15 N. E. 341, 3 Am. St. Rep. 645; Marlsbary v. State (1894) 10 Ind. App. 21, 37 N. E. 558. Iowa: State v. Mizner (1878) 45 Iowa 248, 32 Am. Rep. 128. Kansas: State v. Ward (1855) 1 Kan. Law J. 370. Maine: Stevens v. Fassett (1847) 27 Me. (14 Shep.) 266; Patterson v. Nutter (1886) 78 Me. 509, 7 Atl. 273, 57 Am. Rep. 818. Missouri: Deskins v. Gose (1885) 85 Mo. 485, 55 Am. Rep. 387; Cook v. Neely (1910) 143 Mo. App. 632, 128 S. W. 233. Nebraska: Clasen v. Pruhs (1903) 69 Neb. 278, 95 N. W. 640. New Hampshire: Kidder v. Chellis (1879) 59 N. H. 473; Wilbur v. Berry (1902) 71 N. H. 619, 51 Atl. 904. Pennsylvania: Commonwealth v. Fell (1833) 11 Haz. Reg. 179; Commonwealth v. Seed (1852) 5 Clark, 78, 4 Am. Law J. (N. S.) 137. Texas: Stanfield v. State (1875) 43 Tex. 167; Metcalf v. State (1886) 21 Tex. App. 774, 17 S. W. 142; Dowlen v. State (1883) 14 Tex. App. 61; Balding v. State (1887) 23 Tex. App. 172, 4 S. W. 579; Hutton v. State (1887) 23 Tex. App. 386, 5 S. W. 122, 59 Am. Rep. 776; Thomason v. State (1898) 38 Tex. Crim. App. 335, 43 S. W. 1013; Ely v. State (1913) 68 Tex. Crim. Rep. 562, 152 S. W. 63. Vermont: Lander v. Seaver (1859) 32 Vt. 114, 76 Am. Dec. 156. See also: Notes-102 Am. St. Rep. 537; 65 L. R. A. 891, as to English concurrent views. Comment: Many of these cases are criminal actions, but are included since here civil liability lies where criminal liability does. Legal Authority to Inflict Corporal Punishment 223 in a limited sense. The teacher has no general right of chastisement for all offenses as has the parent. The teacher's right in that respect is restricted to the limits of his jurisdiction and responsibility as a teacher. But within those limits a teacher may exact a compliance with all reasonable commands and may, in a kind and reasonable spirit, inflict corporal punishment upon a pupil for disobedience. This punishment should not be either cruel or excessive, and ought always be apportioned to the gravity of the offense, and within the bounds of moderation. But, plainly, when complaint is made, the calm and honest judgment of the teacher as to what the situation required should have weight as in the case of the parent under similar circumstances. And where no improper weapon has been employed, the presumption will be, until the contrary is made to appear, that what was done was rightly done. Subject to these general rules, the teacher's right to inflict, and the duty of inflicting corporal punishment upon a pupil, and the reasonableness of such a punishment when imposed, must be judged by the varying circumstances of each particular case."32 So in inflicting punishment a teacher should be governed as to the mode and the severity of the punishment by the nature of the offense committed, the previous good or bad conduct of the pupil and the age, size, sex and apparent power of endurance of the pupil.33 But the mere fact that there was bodily pain, constraint, a sense of shame or other disagreeable emotion produced does not make the teacher liable since it is lawful to produce these under proper circumstances and to a moderate and proportionate degree.3 Therefore, the teacher is not liable for using the degree of violence necessary under the circumstances but he must not exceed this necessary force.35 Thus when a large refractory boy during school hours had intruded himself into the desk assigned a teacher, it was held the teacher was empowered to immediately use what force was necessary, and call to his assistance any aid neces32Vanvactor v. State (1888) 113 Ind. 276, 15 N. E. 341, 3 Am. St. Rep. 645. 3 Lander v. Seaver (1859) 32 Vt. 114, 76 Am. Dec. 156; State v. Ward (1855) 1 Kan. Law J. 370; Ely v. State (1913) 68 Tex. Grim. Rep. 562, 152 S. W. 631; Stanfield v. State (1875) 43 Tex. 167. 34 Ely v. State, supra. 35 Dowlen v. State (1883) 14 Tex. App. 61; Kidder v. Chellis (1879) 59 N. H. 473; Ely v. State, supra. 224 The Legal Authority of the American Public School sary to accomplish the pupil's ejection.36 In certain cases the teacher may be allowed to use quite violent measures. Such was the case when a pupil came to school armed with a pistol and threatened to shoot the teacher when he asked for the gun. There a teacher could employ a stick to the extent necessary to disarm the pupil.37 Thus, also, where an eighteen year old boy, and large for his age, picked up a plank to actively oppose a teacher's lawful demands, the teacher was held justified in beating the pupil about the head with a switch.38 It was also held competent to show in justification that this boy had a bad reputation generally, had been expelled by a previous teacher for carrying brass knuckles and on this occasion had gone out of the schoolhouse and had been prevented from returning with a stick wherewith to assault the teacher only by the efforts of other pupils. Nine sharp blows with a two-pronged switch from a tree, causing pain and some abrasion of the skin, but lasting only a short time, was held a reasonable punishment for insubordination.39 Thus, also, the same number of blows about the legs with a switch of reasonable size inflicting no severe bruises, abrasions or other serious injuries was held a moderate and reasonable punishment for violation of a rule against fighting.40 Four strokes upon the hands resulting merely in pain was likewise held a moderate punishment imposing no liability.41 Whipping a six or seven year old girl with a switch after milder treatment had failed only to such extent that marks were left which disappeared in a few days was held not sufficient to make the teacher liable.42 The question of what is and is not moderate or reasonable punishment is one of fact to be determined upon the facts of each case by the jury.43 ~133. LIABILITY FOR EXCESSIVE OR UNREASONABLE PUNISHMENT. The general rule is that if a teacher inflicts chas36 Stevens v. Fassett (1847) 27 Me. (14 Shep.) 266. 7 Metcalf v. State (1886) 21 Tex. App. 774, 17 S. W. 142. 38 Thomason v. State (1898) 38 Tex. Grim. App. 33, 43 S. W. 1013. 39 Vanvactor v. State (1888) 113 Ind. 276, 15 N. E. 341, 3 Am. St. Rep. 645. 40 Hutton v. State (1887) 23 Tex. App. 386, 5 S. W. 122, 59 Am. Rep. 776. 41 Gardner v. Bygrave, 53 J. P. 743, as reported in note, 65 L. R. A. 892 (English case). 42 State v. Pendergrass (1837) 19 N. C. 348. 31 Am. Dec. 416. 43 Note: 65 L. R. A. 898. Legal Authority to Inflict Corporal Punishment 225 tisement upon a pupil which a reasonable man, upon reflection, would pronounce immoderate, excessive or unreasonable such teacher is liable in damages to the pupil so injured, even though the injury be a temporary one.44 Judge Aldis of the Supreme Court of Vermont early said, "The law, as we deem it to exist, is this:-A schoolmaster has the right to inflict reasonable corporal punishment. He must exercise reasonable judgment and discretion in determining upon what is a reasonable punishment. Various considerations must be regarded, the nature of the offense, the apparent motive and disposition of the offender, the influence of his example and conduct upon others, and the sex, age, size and strength of the pupil to be punished. Among reasonable persons much difference prevails as to the circumstances which will justify the infliction of punishment, and the extent to which it may properly be administered. On account of this difference of opinion, and the difficulty which exists in determining what is a reasonable punishment, and the advantage which the master has by being on the spot to know all the circumstances, the manner, look, tone, gestures and language of the offender, (which are not always easily described) and thus to form a correct opinion as to the necessity and extent of the punish44Alabama: Boyd v. State (1890) 88 Ala. 169, 7 So. 268, 16 Am. St. Rep. 31. Connecticut: Sheehan v. Sturges (1885) 53 Conn. 481, 2 Atl. 841. Indiana: Cooper v. McJunkin (1853) 4 Ind. 290; Gardner v. State (1853) 4 Ind. 632; Dannenhoffer v. State (1879) 69 Ind. 295, 35 Am. Rep. 216; Marlsbary v. State (1894) 10 Ind. App. 21, 37 N. E. 558. Iowa: State v. Mizner (1878) 45 Iowa 248, 32 Am. Rep. 128. Maine: Patterson v. Nutter (1876) 78 Me. 509, 7 Atl. 273, 57 Am. Rep. 818. Massachusetts: Commonwealth v. Randall (1855) 5 Gray 36. Missouri: State v. Boyer (1897) 70 Mo. App. 156; Haycraft v. Grigsby (1901) 88 Mo. App. 354; Cook v. Neely (1910) 143 Mo. App. 632, 128 S. W. 233. Nebraska: Clasen v. Pruhs (1903) 69 Neb. 278, 95 N. W. 640. North Carolina: State v. Stafford (1893) 113 N. C. 635, 18 S. E. 256; State v. Thornton (1904) 136 N. C. 10, 48 S. E. 602. Texas: Stanfield v. State (1875) 43 Tex. 167; Dowlen v. State (1883) 14 Tex. App. 61; State v. Smith (1892) (Tex. Crim. App.) 20 S. W. 360; Spear v. State (Tex. Crim. App.) 25 S. W. 125; Whitley v. State (1894) 33 Tex. Crim. Rep. 172, 25 S. W. 1072; Kinnard v. State (1895) 35 Tex. Crim. App. 276, 33 S. W. 234; Wilson v. State (1916) 80 Tex. Crim. App. 442, 190 S. W. 155; Harris v. State (1918) 83 Tex. Crim. App. 468, 203 S. W. 1089. Vermont: Hathaway v. Rice (1846) 19 Vt. 102; Lander v. Seaver (1859) 32 Vt. 114, 76 Am. Dec. 156. See also: Note 65 L. R. A. 893 for English views. 226 The Legal Authority of the American Public School ment, considerable allowance should be made to the teacher by way of protecting him in the exercise of his discretion. Especially should he have this indulgence when he appears to have acted from good motives and not from anger or malice. Hence, the teacher is not to be held liable on the ground of excess of punishment, unless the punishment is clearly excessive and would be held so in the general judgment of reasonable men. If the punishment be thus clearly excessive, then the master should be held liable for such excess, though he acted from good motives in inflicting the punishment, and in his own judgment considered it necessary and not excessive. But if there is any reasonable doubt whether the punishment was excessive, the master should have the benefit of the doubt."45 This, it is submitted, is the best view of the matter, it being sometimes held that the teacher is not liable for excessive punishment if it was administered in good faith, and was in the teacher's judgment not excessive.46 A trial judge instructed a jury that for a punishment to be beyond the legal limit, it must be so excessive as to excite the instant condemnation of all men. On appeal, the appellate court declared this instruction wrong: "Reasonable men are those who think and reason intelligently. Their general judgment is the common result of their reflection and reasoning. The correct rule holds the teacher liable if he inflicts a punishment which the general judgment of such men, after thought and reflection, would call clearly excessive. The rule given at the trial of this case, however, would permit a teacher to proceed in severity of punishment until it becomes so great as to excite the instant condemnation of all men,-stupid and ignorant, as well as the rational and intelligent. Such a ruling is clearly wrong."47 But, in making the determination as to whether or not a given case is excessive or unreasonable or not, all the surrounding circumstances must be taken into account.48 Such things as size, apparent strength and sex of the pupil; previous good or bad conduct; character of the pupil's conduct; and 45 Lander v. Seaver, supra. See also: Haycraft v. Grigsby (1901) 88 Mo. App. 354. 46 See following section. 47 Patterson v. Nutter (1886) 78 Me. 509, 7 Atl. 273, 57 Am. Rep. 818. 48 Clasen v. Pruhs (1903) 69 Neb. 278, 95 N. W. 640. Legal Authority to Inflict Corporal Punishment 227 threats of any kind may be considered. "... The court acted properly in admitting evidence of the prior and habitual misconduct of the plaintiff," said the Supreme Court of Connecticut in a case in which the matter was questioned, "and it was perfectly proper for the defendant, in chastising him, to consider, not merely the immediate offense, which had called for the punishment, but the past offenses that aggravate the present one, and showed the plaintiff to have been habitually refractory and disobedient."49 It has been said that when a teacher inflicts excessive punishment, he thereby takes himself out of his privileged position and no longer will be regarded as standing in loco parentis, but rather as a stranger.50 The fact that a pupil who is being punished remains unsubdued does not authorize the teacher to go to excess.51 Thus, when a pupil started counting the blows a teacher was giving him, the teacher was held not justified in carrying out a determination to keep striking till the boy ceased counting thereby leaving the boy much bruised and stiff. The fact that an excessive beating may have had a good effect upon a pupil does not relieve the teacher from liability.52 Nor is it any extenuation that the school board may have especially requested that a teacher be more strict in compelling obedience to the rules than was a predecessor.53 Peculiar and interesting reasoning was used in the Indiana case, Gardner v. State.54 There is was said that public policy demanded that the courts restrain teachers from excessive punishments of pupils for otherwise enraged parents would cause disturbances by breaking the peace in wreaking their vengeance upon the teachers. "Such outrages on the child," said the Indiana court in an opinion in the case in which a teacher had worn out two whips and had kicked and struck a boy in the face for misspelling commerce, "even though he be truant and perhaps stubborn, are more than parental feeling can bear. To prevent retaliation and breaches of the peace, 4 Sheehan v. Sturges (1885) 53 Conn. 481, 2 Atl. 841; Stanfield v. State (1875) 43 Tex. 167. 50 Stanfield v. State, supra. 51 Whitley v. State (1894) 33 Tex. Grim. Rep. 172, 25 S. W. 1072. 52 State v. Thornton (1904) 136 N. C. 610, 48 S. E. 602. 53 Ibid. 54 (1853) 4 Ind. 632. 228 The Legal Authority of the American Public School it becomes a matter of public policy to punish the offender. If the law in such cases is properly administered, those whose feelings are outraged will have no apology for taking redress into their own hands, They will peaceably abide the adjudication of the courts. If, on the contrary, the law is loosely and indulgently administered, the tendency is to stimulate the aggrieved to seek personal redress. As a matter of the public policy, courts and juries should therefore hold a strong and stern hand over teachers who abuse their sacred and responsible position." As was stated in the preceding section,55 the question as to whether a given set of facts constitute immoderate or excessive punishment is one for the jury. So the opinion of a witness that a whipping was neither severe, cruel or unjust has been held inadmissible, the court stating that that question was one to be determined by the jury from the size of the rod used, the character of the wounds inflicted and all the surrounding circumstances.56 Thus, it was determined that excess was reached where a teacher after administering a severe chastisement in the schoolhouse followed the pupil into the school yard and struck him with a limb or a stick, then put his hand into his pocket as if to draw a knife and afterwards struck the pupil several times over the head with the butt end of the switch so that the pupil's eye swelled and remained closed for several days.57 So scholars were held beaten excessively when they were chastised with a stick or a switch threefourths of an inch in diameter at the larger end and three or four feet in length and were beaten on and about the back, neck, arms and legs to such an extent that ecchymosis resulted.58 Punishment with a rod so that marks or welts are left on a pupil's person for two months afterward, or for much less time, has been declared immoderate and excessive.59 A whipping with straps for being disorderly so that a pupil's back was covered with stripes and in places with clotted blood 5 Ante, p. 222. 56 Smith v. State (1892) (Tex. Crim. App.) 20 S. W. 360. Whether a rawhide is a proper instrument of punishment is for jury to decide from all accompanying circumstances-Lander v. Seaver (1859) 32 Vt. 114, 76 Am. Dec. 156. 57 Boyd v. State (1890) 88 Ala. 169, 7 So. 268, 16 Am. St. Rep. 31. 58 State v. Boyer (1897) 70 Mo. App. 156. 59 State v. Mizner (1878) 50 Iowa 145, 32 Am. Rep. 128. Legal Authority to Inflict Corporal Punishment 229 made a teacher criminally liable,60 and a beating to such an extent that blood was drawn in nine places was held a criminal assault.61 A teacher who strikes a pupil a large number of violent blows with a club, with a rawhide and with his fist, and shakes him violently and throws the pupil down and brutally strikes and kicks him, wounding him and tearing his clothes is guilty-of excessive violence and is liable to the pupil in damages.62 A teacher was held guilty of simple assault who beat a seventeen year old boy with his right hand till it became numb and then changed to his left and continued the punishment till the pupil was subdued.63 Proper instruments must be used in chastising a pupil. Thus, it is agreed that the use of the fists is unauthorized,64 but a small smooth ratan was declared a proper instrument.65 Any instrument likely to kill or maim, such as a great staff, a pestle, an iron bar, a cudgel, or a sword, is, of course, unfit.66 ~134. EFFECT OF GOOD MOTIVE. Many cases considered in the preceding section have shown that if the punishment a teacher had administered is immoderate, excessive or unreasonable in the judgment of reasonable men, then the teacher is liable regardless of whether he deems it so or not-regardless of the teacher's motive. But there is a group of cases which argue that a teacher in determining the necessity, mode and extent of punishment is exercising a discretionary function and, therefore, as is the case with other quasi-judicial officers, should not be held liable for error in judgment providing such judgment be an honest one. Therefore, they say, even though others might think the punishment excessive and unreasonable, if the teacher honestly thinks otherwise, he should not be held liable unless the scope of authority is exceeded.67 60 Harris v. State (1918) 83 Tex. Grim. App. 468, 203 S. W. 1089. 61 Kinnard v. State (1895) 35 Tex. Crim. App. 276, 33 S. W. 234 -but here case was reversed for retrial on error in admission of evidence. 62 Hathaway v. Rice (1846) 19 Vt. 102. 63 Whitley v. State (1894) 33 Tex. Grim. Rep. 172, 25 S. W. 1072. 64 Cooper v. McJunkin (1853) 4 Ind. 290; Hathaway v. Rice (1846) 19 Vt. 102; Wilson v. State (1916) 80 Tex. Grim. App. 442,190 S. W. 155. 65 Commonwealth, v. Seed (1852) 5 Clark 78, 4 Am. Law J. (N. S.) 137. 66 Note, 65 L. R. A. 898, citing English cases. 67 Illinois: Fox v. People (1899) 84 Ill. App. 270. Indiana: Vanvactor v. State (1888) 113 Ind. 276,15 N. E. 381, 3 Am. St. Rep. 645 230 The Legal Authority of the American Public School Judge Gaston of South Carolina set forth this view in a leading American case, State v. Pendergrass, as follows: "When the correction administered, is not in itself immoderate (so as to produce a lasting injury) and therefore beyond the authority of the teacher, its legality or illegality must depend entirely, we think, upon the quo animo68 with which it was administered. Within the sphere of his authority, the master is the judge when correction is required, and of the degree of correction necessary; and like all others intrusted with a discretion, he cannot be made penally responsible for error of judgment, but only for wickedness of purpose. The best and the wisest of mortals are weak and erring creatures and in the exercise of functions in which their judgment is to be the guide, cannot be rightfully required to engage for more than honesty of purpose, and diligence of exertion. His judgment must be assumed correct, because he is the judge, and also because of the difficulty of proving the offense, or accumulated offenses, that called for correction; of showing the peculiar temperament, disposition, and habits, of the individual corrected and of exhibiting the various milder means, that may have been ineffectually used before correction was resorted to. "We think that rules less liberal towards teachers, cannot be laid down without breaking in upon their authority necessary for preserving discipline, and commanding respect; and that although these rules leave it in their power to commit acts of indiscreet severity, with legal impunity, these discretions will probably find their check and correction, in parental affection, and in public opinion; and if they should not, that they must be tolerated as a part of those imperfections and inconveniences, which no laws can wholly remove or redress."69 There are, then, two views on the criteria for determining a teacher's liability both receiving judicial support. The view New Hampshire: Heritage v. Dodge (1886) 64 N. H. 297, 9 Atl. 722. North Carolina: State v. Pendergrass (1837) 19 N. C. 348, 31 Am. Dec. 416; State v. Thornton (1904) 136 N. C. 610, 48 S. E. 602. Pennsylvania: Commonwealth v. Seed (1852) 5 Clark 78, 4 Am. Law J. (N. S.) 137. Texas: Greer v. State (1907) 52 Tex. Crim. Rep. 331, 103 S. W. 359. See also: Note, 31 Am. Dec. 416; 65 L. R. A. 395. 68 The intent-Cyc. Law Diet. 69 Supra. Legal Authority to Inflict Corporal Punishment 231 that the limit or punishment allowed is the line determined as excessive by reasonable men seems to have received the preponderance of support and is the view the writer submits as the best and more correct. It appears that the one who should bear the responsibility for an injury resulting from indiscretion is the one who has blundered. The other view has, however, received favorable comment.70 This matter was set forth clearly in a note by the editors of American Decisions where it was said that, "Both of these views establish the same uttermost limit of punishment that a teacher may not overstep. They differ in this, that while the first view allows the limit to be reached whenever the teacher, acting without malice, thinks it necessary, the other requires different degrees of punishment to be graduated to different offenses. In the one case, to find a teacher guilty of an assault, it is sufficient for the jury to become satisfied that he acted without the exercise of reasonable judgment and discretion; in the other, they must find that he acted maliciously. This latter view appears the more correct. The qualification that the schoolmaster shall not act from malice will protect his pupils from outbursts of brutality, whilst upon the other hand he is protected from liability for mere errors of judgment."'' The doctrine of no liability in presence of honest motive was carried very far in England; even to protecting a teacher where the pupil's death resulted,72 but in this country it has never been carried that far. ~135. SAME-EFFECT OF BAD MOTIVE. Although teachers are sometimes not liable for the infliction of excessive or unreasonable punishment when their motives are good and honest ones, it is universally held that when chastisement is inflicted through an improper motive the teachers are liable.73 A teach70 See citation in the note quoted from below. 71 31 Am. Dec. 419. 72 Note, 65 L. R. A. 895. 73Alabama: Boyd v. State (1890) 88 Ala. 169, 7 So. 268, 16 Am. St. Rep. 31. Inditna: Cooper v. MeJunkin (1853) 4 Ind. 290; Vanvactor v. State (1888) 113 Ind. 276, 15 N. E. 341, 3 Am. St. Rep. 645; Marlsbary v. State (1894) 10 Ind. App. 21, 37 N. E. 558. Massachusetts: Commonwealth v. Randall (1855) 4 Gray 36. Missouri: State v. Boyer (1897) 70 Mo. App. 156; Haycraft v. Grigsby (1901) 88 Mo. App. 354. North Carolina: State v. Pendergrass (1837) 19 N. C. 348, 31 Am. 232 The Legal Authority of the American Public School er, therefore, may not use his authority as a cloak beneath which to assault his pupils wantonly or out of revenge, or spite, or for similar malicious motive.74 Judge Stuart of the Indiana case, Cooper v. McJunkin, said, "So long as the power to punish corporally in school exists, it needs to be put under wholesome restriction. Teachers should, therefore, understand that whenever correction is administered in anger or insolence, or in any other manner than in moderation and kindness, accompanied with that affectionate moral suasion so eminently due from one placed by the law 'in loco parentis'-in the sacred relation of parent-the Courts must consider them guilty of assault and battery, the more aggravated and wanton in proportion to the tender years and dependent position of the pupil."75 Any chastisement, therefore, which is inflicted for the satisfaction of a malicious motive subjects the teacher to liability and in such a case it is not necessary that the punishment be excessive.76 So even in those cases in which no liability is held to attach for excess through error in judgment, if the motive is bad the teacher is liable even though the punishment be a moderate one. "If he uses his authority as a cover for malice, and under the pretense of administering correction, to gratify his own bad passions," said Judge Gaston in State v. Pendergrass, "the mask of the judge shall be taken off, and he will stand amenable to justice, as an individual not invested with judicial power."77 No degree of punishment may be inflicted maliciously or without just provocation. "There is no such thing as reasonable punishment for malicious motives. It must be administered for a salutary purpose-to maintain the discipline and efficiency of the school."78 Dec. 416; State v. Stafford (1893) 113 N. C. 635, 18 S. E. 256; State v. Thornton (1904) 136 N. C. 610, 48 S. E. 602. Pennsylvania: Commonwealth v. Fell (1833) 11 Haz. Reg. 179. Texas: Stanfield v. State (1875) 43 Tex. 167; Kinnard v. State (1895) 35 Tex. Crim. App. 270, 33 S. W. 234; Dill v. State (1920) (Tex. Crim. App.) 219 S. W. 481. Vermont: Hathaway v. Rice (1846) 19 Vt. 102; Lander v. Seaver (1859) 32 Vt. 114, 76 Am. Dec. 156. 74 State v. Thornton, Dill v. State, supra. 75 Supra. 76 Haycraft v. Grigsby, supra. '7 (1837) 19 N. C. 348, 31 Am. Dec. 416. 78 Haycraft v. Grigsby, supra. Legal Authority to Inflict Corporal Punishment 233 The presence of malice is determined from the facts of each case and proof of excess may itself infer improper motive.79 "... In the case of the chastisement of a pupil, the intent may be inferred from the unreasonableness of the method adopted, or the excess of force employed, but the burden of proving such excess rests upon the state. In such a case, in addition to the general presumption of his innocence, the teacher has the presumption of having done his duty...."80 Thus, where a teacher excessively beat a pupil within the schoolhouse, then followed him to the yard and there continued his chastisement in a cruel and inhuman manner, and then in an angry and excited manner remarked in the presence of the school and others that, "he would whip any man in China Grove beat," it was held there was ample reason to infer legal malice.81 ~136. LIABILITY FOR PUNISHING CORPORALLY ADULT PUPILS. Adult persons who have enrolled as pupils in a school stand in no different relation to the master than the other scholars and are therefore amenable to the same rules and have no more rights in actions against the teacher than the others have.82 Thus, a teacher was not liable for using the necessary force to dislodge a 21 year old pupil who had intruded himself into the teacher's seat,83 nor for moderately punishing a 21 year old girl for refractory conduct.84 This girl had misrepresented her age and had entered the school voluntarily. It was contended that because of the pupil's age she was not amenable to the school discipline and, therefore, the teacher was liable assault and battery. In denying the soundness of this contention the judge said: "But if a child a few months younger than five years should, by misrepresenting his age, or by mere sufferance, be allowed to attend school and enjoy its privileges and advantages, would a teacher be liable to a prosecution for assault and 79 State v. Boyer (1897) 70 Mo. App. 156; State v. Thornton (1904) 136 N. C. 610, 48 S. E. 602. 80 Vanvactor v. State (1888) 113 Ind. 276, 15 N. E. 341, 3 Am. St. Rep. 645. 81 Boyd v. State (1890) 88 Ala. 169, 7 So. 268, 16 Am. St. Rep. 31. 82 Stevens v. Fassett (1847) 27 Me. (14 Shep.) 266; State v. Mizner (1878) 45 Iowa 248, 32 Am. Rep. 128. 83 Stevens v. Fassett, supra. 84 State v. Mizner, supra. 234 The Legal Authority of the American Public School battery, if he should inflict reasonable and moderate chastisement upon such pupil for conduct tending to destroy the order of the school and lessen the means of imparting instruction to others? Manifestly, it seems to us, he would not. And, if a person a few months more than 21 years of age should, by the like sufferance or misrepresentation, be allowed to become a pupil in a school, upon what principle could such person claim all the privileges and advantages which belong only to persons under the age of 21 years, and at the same time be granted immunity from the reasonable corporal inflictions which may be legally imposed upon a person under 21 years of age? A person over 21 years of age becomes a pupil of his own voluntary act. If he does so, and thus of his own will creates the relation of teacher and pupil, and claims privileges and advantages belonging only to those under age, he thereby waives any privilege which his age confers." So also, if a pupil who has in fact withdrawn from a school though no notice has been given the teacher of such withdrawal and the teacher is unaware of the fact, and yet such pupil appears upon the school grounds and there breaks a rule of the school, the teacher will not be liable in damages for inflicting corporal punishment in moderation upon him.85 ~137. LIABILITY OF A SUPERINTENDENT. A superintendent of a Texas school did no teaching, nor was there any provision by the board for his doing so, his duties consisting entirely of general supervision and management. He visited a high school of the city and while there corporally punished one of the high school students, and action was taken against him on the contention that the statute provided the right to "teachers" only to punish corporally. The court upheld this contention, denying the superintendent the status of a "teacher" under the statute. The court said, "It appears from the rules adopted by the school board that appellee had no direct control over the pupils of the schools, except that he was required to investigate complaints they made, and was authorized to transfer them from one school to another for the purposes specified, and to suspend them 'subject to the action of the board.' His control of the 85 Dodd v. State (1910) 94 Ark. 297,126 S. W. 834. Legal Authority to Inflict Corporal Punishment 235 pupils was indirect-through the teachers. His business as superintendent, except as stated above, was with the teachers, not with the pupils. By the rules, the duty to maintain order and discipline in the schools was devolved upon the teachers not on him, and the power to inflict corporal punishment on pupils was conferred upon the teachers not upon him. For the reasons stated, we do not think appellee was a 'teacher' within the meaning of the law that authorized a teacher to chastise his pupil. The teacher the law has in mind, we think, is one who for, the time being is in loco parentis to the pupil; who, by reason of his frequent and close association with the pupil, has an opportunity to know about the traits which distinguish him from other pupils; and who, therefore, can reasonably be expected to more intelligently judge the pupil's conduct than he otherwise could and more justly measure the punishment he deserves, if any."86 Under the authority of this case, then, where statutes grant power to corporally punish to "teachers" only, non-teaching superintendents are liable for so doing. Under the commonlaw, it appears, this would not be so. ~138. CHAPTER SUMMARY. Teachers may inflict moderate corporal punishment for cause, which extends to acts occurring outside the school and even into the parent's jurisdiction when such acts directly and detrimentally affect the school. But chastisement must be administered neither wantonly nor for insufficient cause; but such grounds as disobedience, violation of reasonable rules and insubordination are sufficient. Liability attaches for inflicting permanent injury unless such injury results from an unknown constitutional defect or from a lawful act of the teacher which he could not reasonably have foreseen would with legal probability result in serious injury. However, a teacher may not be forced to respond in damages to a pupil moderately and reasonably chastised in a kindly spirit for a sufficient cause, temporary pain alone being inflicted. But the general rule is also that if a teacher inflicts chastisement upon a pupil which a reasonable man upon reflection would pronounce immoderate, excessive or unreasonable such teacher is liable in damages; and usually with 86 Pendergrass v. Masterson (1917) (Tex. Crim. App.) 196 S. W. 246. 236 The Legal Authority of the American Public School out regard to the fact that the teacher acted without malice. Some cases, however, do hold that if the punishment is not itself inherently immoderate the teacher is not liable if he acts in honest error, even though reasonable men would pronounce the chastisement excessive. But when the chastisement is administered maliciously, the universal rule is that the teacher must respond in damages for assault and battery and without regard to the extent of the punishment. Teachers may punish adult pupils under the same rules as other scholars. Where by statute the right to corporally chastise inures to "teachers" alone, a non-teaching superintendent may be liable for administering such punishment, although it must be remembered that only a single isolated case has yet been determined on this point, and that in that case the provisions of a statute were involved. CHAPTER XI Comments on, and Criticisms of the Law of Tort Liability in Public Schools Analysis of Chapter SECTION PAGB Criticisms, implications and suggestions as to the extension of governmental non-liability in tort to the school corporation...................................................... 139 237 Criticism of absolute liability of school officers for loss of school funds................................................................ 140 240 Comments on the allowance of corporal punishment.......... 141 240 ~139. CRITICISMS, IMPLICATIONS AND SUGGESTIONS AS TO THE EXTENSION OF GOVERNMENTAL NON-LIABILITY IN TORT TO THE SCHOOL CORPORATION. Borchard has attacked the whole doctrine of governmental non-liability in tort.1 It is based, he says, upon the medieval theory that "the King can do no wrong." He contends that when the government commits a wrong and thereby injures an individual, the government should assume the responsibility as do the governments of continental Europe and should not leave the burden with the injured individual to bear alone, or leave action against the officer who may have caused the injury as the sole remedy. Roscoe Pound is cited as terming such governmental refusal to assume responsibility while leaving the burden on the officer as "flagrantly defective social engineering." We have seen that governmental non-liability in tort has passed on down to the quasi corporations, and thereby to the school corporation. The result is that we have in the school corporation a local administrative body which is to a large extent an irresponsible one. The courts guard this immunity of the school corporation very jealously and ward off carefully any attempts made to hold them responsible. This is very convenient for the school corporation and makes it a powerful 1 Borchard, Edwin M., Government liability in tort. Yale L. J. 34: 1; 35:229 (Nov. '24, Jan. '25). 238 The Legal Authority of the American Public School and, to no small extent, an autocratic body. Most school boards do not fully realize their powerful position. For example, boards of education often insure their bus systems against accidents to pupils; but there is no necessity Qf that for the school will not be held no matter how negligent it may be in the matter of furnishing proper transportation. Although the school corporation is thus placed in an enviable position, the same cannot be said for the persons injured by the wrongs of the school. The final result often is that persons injured are left without remedy, or must look to a subordinate from whom no or inadequate monetary compensation can be gotten. For example, a child injured by a defectively constructed piece of playground apparatus in a city school yard will not be able to recover against the city; if recovery is not denied because the school corporation is distinct and separate from the municipality, recovery in damages will be refused because the city in the operation of its schools is functioning in its governmental capacity and hence is not liable. Suppose the child now takes action against the city board of education. There will be no recovery there since the apparatus is on the lot of a ward school, which is under the care and supervision of the ward trustees, for whose acts the city board of education is not liable, the rule of respondeat superior not applying to a governmental agent exercising a governmental function. Suit against the board of ward trustees will turn out likewise for the same reasons. Nor will suit against the city board members or the trustees individually result in an award of damages. There denial of recovery will be based on the reasons that such men have not acted individually but as a board, and also that if such suit were allowed, no one would be found willing to serve on school boards. The injured child's only recourse will now be against the ward-school janitor who erected the apparatus if, indeed, he has been negligent, but from whom no adequate compensation can be expected.2 2 See: Donovan v. Bd. of Ed. of New York (1876) 44 N. Y. Supr. Ct. 53, 55 How. Prac. 176; Same (1881) 85 N. Y. 117; Donovan v. McAlpin (1881) 46 N. Y. Supr. Ct. (14 Jones) 111; Same 85 N. Y. 185, 39 Am. Rep. 649-which chronicle the unfruitful endeavors of a New York boy, injured by falling into a hole negligently left uncovered in a school yard, to win compensation for his injury. See also: Anderson v. City of Fargo (1922) 48 N. D. 722, 186 N. W. 378; Anderson v. Bd. of Ed. of Fargo (1922) 49 N. D. 181, 190 N. W. Comments and Critic 239 Justice dictates that there should be adequate remedy for such wrongs. The question is: who shall bear the responsibility? It is certain that if the wrong is that of the school corporation, the individual school officers cannot be held unless they are personally culpable. If they could be held the schools of the nation would soon be without officers. Few would assume the risk.8 It seems evident that the responsibility for injury resulting from the wrong of the school corporation should be borne by the district. Thus the loss may be spread among the people of the district rather than imposed upon the unfortunate individual who must bear both the suffering and the expense. If it were deemed advisable thus to place the responsibility upon the corporation, it must be done by statute and not left to the courts. Thus Judge Burch of the Kansas Supreme Court recently said, "If the doctrine of state immunity in tort survives by virtue of antiquity alone, is an historical anachronism, manifests an inefficient public policy, and works injustice to everybody concerned, the Legislature should abrogate it.... The Legislature must make the change in policy, not the courts."4 For one thing, the courts are too tightly bound by precedent; for another, the establishment of policy is beyond their sphere. But the advisability of allowing such recovery in damages against the school corporation is not without very serious objections. The main question is: would such a policy place an unbearable financial burden upon the schools? Judging from the opinions of numerous judges, and the experience of the State of Washington, it seems probable that such would be the case if unrestricted action were allowed. The advisable yet equitable solution then would seem to be a restricted allowance of such suit. New York does this by allowing recovery only for the torts of the corporation itself and precluding suit for torts of subordinates.5 Washington now allows suit for only 807-which tell of the unsuccessful attempt of a mother to obtain compensation for the death of her child killed on a Fargo school playground. 3 See: Hunter, Hugh Allen. The personal liability of school board members with reference to hazards to pupils. Amer. School Bd. Jour. 68: 53 (Feb. '24)-telling of the result of a California decision against a school officer in the case of a playground injury. 4McGraw v. Rural Dist. No. 1 (1926) 120 Kan. 412, 243 Pac. 1038. 5 The New York Rule has been criticised as follows: "... if a school 240 The Legal Authority of the American Public School certain types of injuries. It is here submitted that a more equitable way would be to allow the suit but restrict the amount of recovery. Only compensatory damages, probably restricted in amount, should be allowed while exemplary awards should be prohibited. Such a system would provide expenses to the injured persons without overburdening the school corporation. Other systems that may be mentioned are workmen's compensation arrangements as to injuries to school employees, or a system of insurance against school accidents to both employees and pupils. ~140. CRITICISM OF ABSOLUTE LIABILITY OF SCHOOL OFFICERS FOR LOSS OF SCHOOL FUNDS. It is submitted that a school officer should not be held liable for school funds lost without fault of the officer. The care of school funds should be set forth in detail by statute. If such statutory instructions are carried out, the officer should not be held liable; but if the loss should occur through neglect of such ministerial duties liability could attach with complete justice. ~141. COMMENTS ON THE ALLOWANCE OF CORPORAL PUNISHMENT. An Indiana judge in an opinion rendered in 1853 said concerning corporal punishment: "The law still tolerates corporal punishment in the schoolroom. The authorities are all that way, and the legislature has not thought proper to interfere. The public seem to cling to a despotism in the government of schools which has been discarded everywhere else. Whether such training be congenial to our institutions and favorable to the full development of the future man, is worthy of serious consideration, though not for us to discuss. "In one respect the tendency of the rod is so evidently evil, that it might, perhaps, be arrested on the ground of public policy. The practice has an inherent proneness to abuse. The very act of whipping engenders passion, and very generally district is a governmental agency and cannot be liable under the doctrine of respondeat superior for the nonfeasance or misfeasance of a teacher or janitor,... then it cannot be liable for the nonfeasance or misfeasance of a board of education, which is simply the agent of the school district, [so] to apply the New York rule is to apply the doctrine of respondeat superior to some agents and not to others."-Prince, Harold A., Liability of school districts in Nebraska for personal injury. Amer. Sch. Bd. Jour. (Feb. '26) p. 67. Comments and Critic 241 leads to excess. Where one or two stripes only were at first intended, several usually follow, each increasing in vigor as the act of striking inflames the passions. This is a matter of daily observation and experience. Hence the spirit of the law is, and the leaning of the courts should be, to discountenance a practice which tends to excite human passions to heated and excessive action, ending in abuse and breaches of the peace. Such a system of petty tyranny cannot be watched too cautiously nor guarded too strictly. The tender age of the sufferers forbids that its slightest abuses should be tolerated. "One thing seems obvious, the very act of resorting to the rod demonstrates the incapacity of the teacher for one of the most important parts of his vocation namely, school government. For such a teacher the nurseries of the republic are not the proper element. They are above him. His true position will readily suggest itself. "It can hardly be doubted but the public opinion will, in time, strike the ferule from the hands of the teacher, leaving him as the true basis of government, only the resources of his intellect and heart. Such is the only policy worthy of the state, and of her otherwise enlightened and liberal institutions. It is the policy of progress. The husband can no longer moderately chastise his wife; nor, according to the more recent authorities, the master his servant or apprentice. Even the degrading cruelties of the naval service have been arrested. Why the person of the school-boy 'with his shining morning face,' should be less sacred in the eye of the law than that of the apprentice or the sailor is not easily explained. It is regretted that such are the authorities,-still courts are bound by them. All that can be done, without aid of legislation, is to hold every case strictly within the rule; and if the reaction be in anger, or in any other respect, immoderately or improperly administered, to hold the unworthy perpetrator guilty of assault and battery."6 Fortunately the use of corporal punishment has declined much from that day to the present so that it is used in modern schools only as a last resort in extreme cases. However, it is submitted that the passage of a statute absolutely forbidding 6 Cooper v. McJunkin (1853) 4 Ind. 290. 242 The Legal Authority of the American Public School its use is a mistake. Causes are certain to arise in the elementary schools at least in which it should be within the teacher's discretion to make use of moderate physical chastisement. But it should be recognized as an extraordinary measure and therefore should be carefully guarded against abuse. TABLE OF CASES CITED PAGE ALABAMA Alabama University v. Winston. --- —------------------ 7 Boyd v. State........................ 214, 220, 221, 225, 228, 231, 233 Christian v. Jones........................ 68 Williams v. Smith........................ 198 ALASKA Ketchikan v. Strong........................ 37, 39 ARKANSAS A. H. Andrews Co. v. Delight Special School District........:................. 12, 53 Arkansas National Bank v. School District No. 99.50 Barton v. Hines.65 Blanchard v. Burns.......................................................................... 147, 161 Dodd v. State.................................................................................. 196, 214, 234 Douglas v. Campbell...................................... 64, 94, 170, 171, 173, 198 First National Bank of Waldron v. Whisenhunt.................................. 19, 50 Hendrix v. Morris. --- —------------------------------------------------------------------— 157 Morris v. School District No. 86. 54 Ottinger v. Ferrell..................................................................................185 Pearson v. State.159 Pugsley v. Sellmeyer................................................... 68 Rural School District No. 50 v. First National Bank...... 19 School District No. 11 v. Williams.......................................................... 12 ARIZONA Jarvis v. Hammons......................................................... 37 School District No. 48 v. Rivera....................................... 25, 88, 99, 146 CALIFORNIA Ahern v. Livermore Union High School District.................................... 134 Board of Education of San Francisco v. Donahue. --- —---------------------------- 53 Carpenteria School District v. Heath.................................. 49 Damgaard v. Oakland High School District.137 Dawson v. Tulare Union High School........................................................ 136 Denman v. Webster. --- —-------------------------------------------------— 54 Dixon v. Allen................................................... 209 Esberg v. Badaracco.43 Estate of Bulmer. --- —---------------------------------------------------------------------— 49 Fawcett v. Ball...................................................................................... 25, 30, 31 Hardwick v. Board of Trustees............................................. 61 244 Table of Cases Cited PAGE Huff v. Compton City Grammar School District....-..........-.... 135 Los Angeles City School District v. Longdon....................- 17, 54 Maede v. Oakland High School District................................................... 137 Malaley v. City of Marysville...-...............30, 32, 37 Marsiglia v. Dozier.................. -..-....... —....... 168 McCabe v. Carpenter................-........-..... - 30, 34 McKenzie v. San Francisco.-............ --- -............... —. 43 Pasadena School District v. Pasadena.....-............. - 17, 50 Pass School District v. Hollywood City School District............-.17, 30, 33 Strauch v. San Mateo Junior College District.....-..................... 135 Wood v. Calaveras County...........................-....... 17, 37 COLORADO Denver School District No. 1 v. Kennedy....................... 91, 102 Dixon v. People.-...........-.....-...... -----—.- 6, 9 Florman v. School District.....-...............25, 27 Guyer v. Stutt -............... --- —---— 25, 30, 57 Olson Lumber Co. v. School District No. 8......... 25, 30, 31, 88, 111, 147 Pueblo, Etc. Railway Co. v. Taylor..........-.............. 7 School District No. 13 v. County Superintendent.. —...-......-........ 67 School District No. 98 v. Pomponi..........-...........17, 57 Wertz v. Lawrence.-...... -... ---------—...- 184 CONNECTICUT Barry v. McCollum............-..........185, 204, 206 Bissell v. Davison.-........-.. ----—...-. 62 Haight v. Cornell. —..............-.......... -...- 189 Hassett v. Carroll.-........ —....................................... 12, 45 Hotchkiss v. Plunkett...-.......-..... --..... --- 53 Lindley v. Horton.-.......-... ---..-..-..-........... 184 McLoud v. Selby....-.................. --- —..- 12, 49 Ogden v. Raymond.......................-...................-25, 29 O'Rourke v. Walker...-..-................... 196, 214, 216, 219, 222 Peck v. Smith..-....-......-.....-......... 175 Sheehan v. Sturges. —...............-.......218, 222, 225, 227 Watson v. New Milford...... --- —......... --- ——. 84 ENGLISH Gardner v. Bygrave. —............ ----........ -......-. 224 Herring v. Boyle -....-........................ 202 Suttons Hospital Case.-.......... —............. ---- 3 FLORIDA First National Bank v. Board of Public Institution -... —............. 28 Hulley v. Hunt -..................... —.......- 209 Montgomery v. Knox....... ---—.............................-..... 73 Table of Cases Cited 245 PAGE GEORGIA Board of Education v. United Supply Co..................................... 147 Brunsw ick v. D eaver.................................................................................... 41 County Board of Education v. Hunt...........6......................... 68, 69 Nabell v. City of Atlanta...................................... 29, 77, 81 Samuel Benedict Memorial School v. Bradford...................................... 61 Sorrels v. Matthews.......................4.................94, 173, 175 State v. Atkins.....8.......-................................................ 6 Ty Ty Consolidated District v. Colquitt.................................... 147 IDAHO Barton v. Rodgers et a.................................................................... 188 Olm stead v. Carter........................................................................53, 69 ILLINOIS Adams v. Brenan............2.............................................. 25, 28, 50, 65 Adams v. State........................................................ 156 Alderm an v. District No. 5........................................................ 54 Armstrong v. School Directors..................................................... 65 Baker v. DuPage County......................................................................... 65 Barth v. Hanna.......................................... 185 Board of Trustees v. Baker............................................. 157 Burroughs v. Mortenson...................................... 199 Bush v. Shipman.................................................................................19, 30, 32 Chicago v. Board of Education of Chicago..............4............ 45 Churchill v. Fewkes.................................................................... 170, 172, 201 Clinton County School Trustees v. Tatman..................... 25, 30, 31 Directors v. Fogleman.............................................. 50 Fox v. People....................................................................... 229 Hagler v. Larner................................................... 61 Hollenbeck v. Winnebago........................................................ 9 Jackson v. School Directors..................................................................... 66 Kinnare v. City of Chicago.....-.................12, 25, 28, 79, 88, 94 Lawbaugh v. Board of Education........................... 62 Lawrence v. Traner -. —... —....-...-..................... 65 Lovingston v. Board of Trustees..................................... 58 McCormick v. Burt................-....... ---......169, 170, 172, 201 Melin v. School District No. 76......................................- 17, 25, 52 Olney School District v. Christy.............................................. 65 Pears v. School District No. 3............................................ 50 People v. Board of Education of Chicago............................................ 45 People v. Board of Education of Paris School District. —... 7, 17, 25, 30, 50 People v. Coffin; People v. Francis; People v. Miller.............................. 43 People v. Dupuyt.........................7, 12, 50, 56 People ex rel Longress v. Board of Education of Quincy............ 69 People ex rel McMahon v. Davis................40........ 40 246 Table of Cases Cited PAGE People v. Frost.................................................... 65 People v. Ray..-...........................1.............. 158 Pfeiffer v. G rossm an.................................................................................... 72 Phelps v. Board of School Inspectors of Peoria.................................41, 43 Phenicie v. Board of Education of District No. 305............................... 66 Raush v. Anderson..................................................... 204 Rulison v. Post.................................................................. 61, 169, 199 School Trustees v. People................................... 61 Segar v. Board of Education of Rockford..................................... 68 Smith v. Board of Education of Oak Park...................... 68 State ex rel Jenkins v. Board of Education of Chicago....................... 62 Stroh v. Casner.............................................19, 50, 56 Struckley v. Churchman....................................... 203 Thompson v. Beaver.......................................... 68 Township v. Misenheimer............................................. 157 Trustees v. People......5........................................ 55 Trustees of Schools v. Shepherd............................................. 57 Wilson v. Board of Education of Chicago...................................... 68 INDIANA Adams v. Schneider......................................-56, 166 Blue v. Beach..-............-.................. ---- - 61 Boyd v. Blaisdell...........................................94, 173 Branaman v. Hinkle.-......-..... —......... --- — 186 Butler v. Haines................................53, 178, 182 Carmichael v. Lawrence......... ---....-...-.....- 37 Cooper v. McJunkin —..............-.........-.... —222, 225, 229, 231, 241 Dannenhoffer v. State....................... —...........-194, 219, 222, 225 Fertich v. Michener........................59, 60, 194, 195, 201, 202 Freel v. School City of Crawfordsville........................... 26, 27, 89, 90, 95 Gardner v. State..... —... -...............-.-. 225, 227 Guethler v. Altman..................-......................161, 210, 212 Heinl v. Terre Haute................................... —37, 39 Henry v. Moberly....-............ —... —...-...............- 188 Inglis v. Hughes..........-...... -......-.....37, 158 Jackson Township v. Barnes...........................- 37, 39 Jarvis v. Robertson...... ---................. 37 Johnson v. Putnam -. — -—........-..-........ ----...... 182 Judy v. Citizen........... ---—........... -.. -..... --- 182 Lyle v. State. —.......... —............................ -—...... 67 Marlsbary v. State...................................... — 214, 219, 222, 225, 231 McGregor v. State.-...-..... —...-........... --- —--- 69 McLaughlin v. Shelby Township. ---- -........................ 37 Morrison et al. v. McFarland.................................... 178 Princeton School Town v. Gilhart............................. 37 Sherman v. Miller Construction Co......-....................-........... 165 Table of Cases Cited 247 PAGE State ex rel. Andrew v. W ebber.................................................................. 61 State v. Gray..............................................................67, 68 State v. V anderbilt........................................................................................ 218 Teeple v. State.............................................................................................. 37 Tufts v. State........................................... 66 Utica Township v. M iller................................................................. 37, 39 Vanvactor v. State........................................219, 222, 223, 224, 229, 231, 233 W hite v. K ellogg............................................................................................ 182 W right v. Stockm an..................................................................................... 37 IOWA Andrew v. Stuart Savings Bank..............................................................51, 65 Barclay v. School Township.................................................................. 65 Bluff Creek District Township v. Hardinbrook...................................... 158 Burdick v. Babcock et al............-........................171, 198 Cedar Township Independent School District No. 6 v. Wirtner............ 57 Consolidated School District v. Griffin........................................................ 65 Courtright v. Consolidated District........................................................19, 55 Crawford v. School Township.................................................................. 65 Curry v. District Township of Sioux City.................................. 21 Hansen v. Independent School District of Holsties...................... 159 Hanson v. City of Gresco..................................... 8 Herrington v. District Township of Liston.............................................. 66 Holmes v. Blyler................................................................... 72 Kinzer v. Marion Independent School District....................................67, 68 Lane v. District Township of Woodbury --— 12, 16, 25, 28, 51, 89, 96 Security National Bank v. Bagley.-............................ -.... 56, 67 State v. Mizner.............-.-. 196, 214, 218, 222, 225, 228, 233 State v. Wick............ —........... 57 Taylor District Township v. Morten.......................................................... 158 Valentine v. School District of Casey....................................- 25, 30, 59, 69 Waddell v. Board of Directors... --- —---—....-..-25, 30, 32 Winspear v. District Township of Holman........................................ ---------- 18 Wood v. Independent School District of Mitchell................................ --- — 91, 103 KANSAS Beach v. Leahy............... --- ——............................... 13, 26 Creyhon v. Board of Education.............................. --- —-------- 67, 69 Freeland v. Stillman.... --- —-.... —....... --- —--. 12 Knowles v. Topeka Board of Education ---........................ 12, 37 Lawrence Board of Education v. Dick...................................... ---------- 55 McGraw v. Rural District No. 1. --- —------ 26, 29, 76, 89, 95, 239 Osborn v. Russell.................... ---.................................. --- —------ 62 Rock Island Lumber & Manufacturing Co. v. Elliott................7, 17, 89, 111 Rural High School District v. Davis....... — ------ ------ 54 School District No. 64 v. Hand.................................................................. 156 248 Table of Cases Cited PAGE State v. Elk County.............................................................3, 31 State v. Kansas University. --- —------------------------------------------- 7 State v. Ward. --- —-- -- 214, 222, 223 State v. Wilson.......... 19 Topeka Board of Education v. Welch........................................... 55, 68 Williams v. Board of Education......................................... 59 KENTUCKY Adams v. Thomas et al........................ 179 Baskett v. Crossfield et al --------—. --- —----.. 208 Board of Education v. Booth...................... 68 Board of Education of Newport v. Scott............................................ 12, 54 Bonham v. Dotson. --- —------------------------------------------— 190 Booth v. Board of Education. --- —-------------------------------------------— 26 Brown v. Newport Board of Education. 18, 26 City Council of Richmond v. Powell.. 18 Clark v. City of Nicholasville et al.. 26, 77, 79, 89, 96 Commonwealth v. Louisville & N. Ry. Co... 18 Ernst v. City of West Covington. --- 77, 80 Hatchett v. Blacketer. ---------------- 72 Lewis v. Durham. --- —---------- 65 Mock v. Board of Education of Nelson County..182 Montenagro-Riehm Music Co. v. Board of Education. 68 Montgomery v. Claybrooks. 66 Ranson v. West. --- —--------------. 189 Roberts v. Clay City. --- —------------- 43 Spears v. McCoy. --- —------- --- 184 Tanner v. Stevenson.. 150, 204, 206 Thompson v. Bridges. 185 Thompson v. Randall. 73 LOUISIANA Horton v. Bienville Parish.... 26, 89, 106 Pailette v. Carr.. 66 MAINE Andrews v. Estes. ---------------- 12 Donahue v. Richards et al... 94, 170, 171, 173 Patterson v. Nutter. --- —------------ 194, 195, 214, 215, 222, 225, 226 School District No. 6 v. Aetna Insurance Co.. 53 Shaw v. Small. --- —----------------- 67 Stevens v. Fassett. 60, 196, 219, 222, 224, 233 Toothaker v. Conant. --- —------------------------------— 206 MARYLAND Hooper v. Farnen.. --- -- ----- - - --. 37, 39 Table of Cases Cited 249 PAGE Roschen v. Packard.............................. 179 State ex rel. Weddle v. Board of School Commissioners..............12, 89, 101 Wiley v. School Commissioners........................68, 69 MASSACHUSETTS Alvord v. Inhabitants of Chester............................... 66 Attorney-General v. Haverhill Gas Light Co........................... 7 Barnard v. Inhabitants of Shelbourne....-....-...........58, 85 Biglow v. Inhabitants of Randolph........................................................7, 80 Bishop v. Inhabitants of Rowley........................67, 68, 84 Carr v. Inhabitants of Dighton................................................................ 68, 85 Commonwealth v. Randall............................................................214, 225, 231 Davis v. City of Boston............................................. 86 Dickson v. United States.............................................................................. 15 Fifty Associates v. Howland........................................................ 182 Hammond v. Hyde Park................................................................................ 85 Hill v. City of Boston.....................26, 77, 78 Hodgkins v. Rockport.................... 85 Howard v. City of Worcester...........................33, 77, 80 Inhabitants of District No. 1 v. Richardson............. 30 Inhabitants of Rumford v. Wood................... 2, 12, 14 Jones v. City of Fitchburg...................................................... 84 Learock v. Putnam.. --- —-—............... 170 McKenna v. Kimball -.............. ----......... -- 26, 29, 154 McNeil v. City of Boston............................... 77 Miles v. City of Worcester......................................................................... 84 Morrison v. City of Lawrence...-............-......67, 84 Morse v. Ashley..................... 37, 59 Newcomb v. Rockport........................................ 56 Perkins v. Weston................. --------— 43, 54 Reardon v. Thompson.................................................................................. 98 Russell v. Lynnfield.........................................................................66, 85 Sherman v. Inhabitants of Charlestown....................64, 84, 85 Spear v. Cummings............................................................................. 203 Spiller v. Woburn............... 85 Sullivan v. Boston.7..7......................7, 80 W atson v. Cambridge............................................................... 85 Williams v. School District ---—............................ 66 Wulff v. Inhabitants of Wakefield.-8-5-.... -...-.....-.............. 85 MICHIGAN Amperse v. Winslow......................................... 150 Attorney-General v. Lowrey................................................ 26, 30 Attorney-General v. Thompson............................... 44 Board of Education v. Detroit................................................44, 64 Board of Education of Detroit v. Common Council of Detroit........ 44 250 Table of Cases Cited PAGE Burton v. Detroit............................................................. 45 Child Welfare Society v. School District.-..... —.......................26, 30, 31 Daniels v. Board of Education of Grand Rapids...- 14, 26, 29, 89, 97, 153 Everest v. McKenny..........-....-..........-....... 208 Ferris v. Board of Education of Detroit......................................44, 95, 145 Jones v. Cody. --- —- ----—.......... -................. --- —-.63, 210 Kuhn v. Board of Education -----------...................... 59 Kuhn v. Thompson...-... -----—............-.................. 44 Marathon Township School District No. 4 v. Gage......................... 19 Mathews v. Kalamazoo Board of Education -................. 62 Michigan State Bank v. Hastings................................................... 6 O'Connor v. Sill. — --- ---- --—...................... 204 O w en v. H ill......................................................................... 52, 159 People v. Board of Education of Port Huron.................................. 37 People v. Munising Township................................................................... 37 School District No. 1 v. Joint Township Board-................................. 37 Thibault v. Sessions et al............................................................................. 184 Wells v. Board of Education...-................. --.... 159 Whitehead v. Board of Education —.................. —... ---- -.......26, 29, 89, 95 W ieman v. Mabee............................................. 185 MINNESOTA Allen v. School District No. 17.................-....................26, 89, 107, 116 Bang v. Independent School District. -.................................. 117 Bank v. Brainerd School District................................-.... 26, 89, 102 Board of Education of Pine Island v. Jewell-...........-.....-......................... 158 Board of Education of Sauk Centre v. Moore -................ 12, 15, 26 Bright v. Beard................... --- —-........... 170 Burch v. Bernard.....1.......-... ---........-......... 150 Christenson v. Plummer et al —.... —.. —....................... 179 Cleary v. Webster....-........ —............................... 206 Currie v. School District No. 26.-...-..... -. --—...... 57 Faunce v. Searles.-.......................-...................... 181 Mokovich v. Independent School District of Virginia....................... 117 School District No. 1 v. Aiton --—...-...-................. 159 School District No. 7 v. Thompson -..... -....................... 54 School District No. 31 v. Roach.........-......-......... 58 Snider v. City of St. Paul... --..........-..-...-........ 17 State v. Consumers' Power Co. —... ----................-.. 7 State ex rel. Freeman v. Zimmerman........-.............-....... 61 Wood v. School District No. 73. ---. —.. --—.. -.... —....... 65 Wright County School District v. Thompson................................ 12 MISSISSIPPI Ayres v. Board of Trustees............................................... 26 Hobbs v. Germany.. --- —...............................................63, 64 Table of Cases Cited 251 PAGE Jones v. Day................. 64 Lindsey v. Marshall................. 156 Littleworth v. Davis................................................................................... 12 Nabors v. Holly Bluff Consolidated District.26 Reese v. Isola State Bank................................ 154 MISSOURI Austin v. Ransdell...................................................................................... 159 Beauchamp v. Consolidated School District No. 4..................................... 66 Bray v. Callihan................................................. 184 Buchanan County School Dist. No. 7 v. St. Joseph School Dist. --- —--- 37, 38 Burton Machinery Co. v. Ruth............................ 159 Cockran v. Wilson et al..................................... 12, 26, 28, 89, 90, 104 Consolidated School District No. 6 v. Shawhan. --- —------------------------------ 155 Cook v. Neely............................ 214, 219, 222, 225 Decker v. School District No. 2..................................................... 65 Deskins v. Gose. --- —-----------------------------------— 63, 196, 219, 222 Dick v. Board of Education of St. Louis........................ 12, 26, 28, 89, 102 Dritt v. Snodgrass...................................... 170, 171, 201 Englehart v. Serena.. ----......... --- —--—..... ----60, 170, 172 Finley v. Steele.................................................... 190 Fogarty v. Davis................................................................ 160 Haycraft v. Grigsby. 176, 225, 226, 231, 232 Heller v. Stremmel.................................................................................... 26, 28 Hydraulic Press Brick Co. v. School District of Kirkwood. 154 Johnson v. Dye.65 King v. Jefferson City School Board.68 Krueger v. Board of Education of St. Louis.................... 12, 26, 28, 89, 107 McClure v. School District of Tipton............................................ 26, 89 McCutchen v. Windsor................ 67, 179, 180, 182 O'Connell v. Board of President and Dirs. of the St. Louis Schools...-26, 28 School District No. 45 v. Correll................................................................ 53 State v. Boyer............................. 225, 228, 231, 233 State ex rel. Beaty v. Randall. --- —---------------- 194, 195 State ex rel. Carrolton School District No. 1 v. Gordon.- 19 State ex rel. Crain v. Hamilton. --- —-----------------------------—...-194 State ex rel. Lowe v. Henderson 37, 40 State ex rel. O'Bannon v. Cole. --. 62 State ex ret. Roberts v. Wilson. --- —------------------------------ 67 State ex rel. School District No. 1 v. Gordon ------------------------------------.69 State v. Hesterly.1 197 State v. Kessler. 65 States v. Oakes. 197 State v. Osborne. --- —----------------------------------------— 63 State v. Powell. --- —-------- 158 Waters v. School District No. 4. 64 Wright v. Board of Education... 50, 63 252 Table of Cases Cited PAGE MONTANA Paxton v. Woodward. --- —------------------------------------------------------------------------— 186 School District No. 2 v. Richards. --- —-------------------- 67, 156 NEBRASKA Clasen v. Pruhs...................................................................... 214, 222, 225, 226 Donnelly v. Duras..........................................................5.............................. 8 Jackson v. State. --- —----------------------------------------------------------------------—.. --- —-67 Quisenberry v. School District No. 6........................................................ 66 Sailling v. Morrell.............................................................. 160 Smith v. Johnson.................................................... 169 State ex ret. Sheibley v. School District No. 1...61 State v. Ferguson. --- —------------------— 61 Vermillion v. State ex ret. Engelhardt..... 67 Ward v. Colfax Co.................................. 158 NEVADA State v. McBride...............5........................0............................ 50 NEW HAMPSHIRE Beach v. Hancock.72................................... 72 Denniston v. Gaffstown. 54 Harris v. Salem School District........ —..........-89, 106 Harris v. School District No. 10. --- —------------------- 2, 8, 12, 15, 50 Heritage v. Dodge. --- —----------------------------------------------— 230 Horne v. School District. ---------------------------------------------—. --- —-..-55, 66, 67 Hutchins v. Page. --- —------------------------------------------------— 183 Johnson v. Dole. --- —---------------------------— 12, 49 Kidder v. Chellis. --- —------------------------------— 219, 222, 223 M oultonborough v. Tuttle --—. --- —---------------------------—. 155 School District v. Pillsbury......................... 12 Sweeney v. Young.. --- —----------------------------------— 170, 172, 173, 201 Wells v. Burbank ---------------------------------—..-. 9 Wilbur v. Berry... --- —--------------------------------------— 222 Wilson v. School District............................................................. 53 NEW JERSEY Ridgway v. Board of Education. --- —--------------------------------—.................-67 Ten Eyck v. Delaware, Etc. Canal Co. --- —---------------------—...-...... --- —-.... --- — 7 NEW MEXICO Albuquerque Water Supply Co. v. Albuquerque. --- —------------------------------ 37, 39 Board of Education of Eddy v. Bitting. --- —-------------------------- 37, 39 Table of Cases Cited 253 PAGE NEW YORK Basmajian v. Board of Education of City of New York...........93, 101, 143 Bassett v. Fish..........................................20, 139, 153, 167 Brown v. City of New York.......................................... 41, 77, 80 Chrigstrom v. M cGregor........................................................................... 20 Dannat v. Mayor of New York.........................................................41, 49, 81 Decker v. Gaylord et a............................................................................ 185 Donovan v. Board of Education of New York City................89, 92, 101, 238 Donovan v. McAlpin........................................................................ 155, 238 Farrell v. Board of Education of New York City......................... 55 Fleischmann v. Graves.............................-......... —. 54 Folsom v. Streeter...................................................... 66 Fuhrman v. Graves......................................................... 44 G alligan v. K elly.................................................................................... 188 Gildersleeve v. New York Board of Education....................... 66 Gregory v. Board of Education of Rochester................................. 93, 144 Gunnison v. New York................................................................. 42 Ham v. City of New York.......................................... 26, 28, 77, 81, 82 Harwood v. Keech......................................................... 184 Herman v. Board of Education of District No. 8..............26, 105, 142, 154 Higbie v. Board of Education of New York City.......-..........-.......93, 100 Hirshfield v. Cook................................................................................ 42 Horton v. Garrison...................................................... 12, 54 Jaked v. Board of Education of Albany...................................... 26, 29 Johnson v. Board of Education of Hudson.................93, 93, 105, 143, 154 Katterschinsky v. Board of Education of New York City....26, 89, 103, 144 Kelly v. Board of Education of City of New York................................. 141 Lent v. Underhill........................................................... 191 Lessin v. Board of Education of City of New York. 144 Mahoney v. Board of Education of New York City.........................42, 45 Mayer v. Chamberlain..............-............ -—. 209 McCarton v. City of New York.....................................77, 81, 140, 145 Miller v. Tayntor... —.................................. 45 Ocorr & Rugg Co. v. Little Falls.-..............-........-..........41, 44 People v. Board of Education of New York-....................... 41 People v. Board of Education of New York City............1........ 7, 17, 55 People ex rel. Board of Education of City of New York v. Finley....... 67 People ex rel. Lewis v. Graves.............................................55, 68 People ex rel. Wells, & Newton Co. v. Craig -...................... 42 People v. Haywood ----—.......-.......-.......-... 26 People v. Petrie.............. —...................................214, 216 Pitt v. Board of Education of New York City..................................... 42 Porter v. Robinson.......................... —............. 64 Rapelye v. Van Sickler...-................. ----.12, 50 Reynolds v. Board of Education of Little Falls........ ---.. 26, 89, 92, 109 Reynolds v. Foster.......... —... --------------—.. ------ 178 Rhall v. New York Board of Education......................... 26, 92, 108 254 Table of Cases Cited PAGE Stephenson v. Hall.......................................................94, 170, 172, 173 Swartwood v. Walbridge..5..................................... 5, 177, 181, 194 Terry v. Mayor......................................77, 81, 82 Titusville Iron Co. v. City of New York...............................42, 77, 81, 140 Treadwell v. City of New York...........................................................77, 81 Union Free School District No. 1 v. Glen Park.....-... —........ 20 Union Free School District No. 6 Board. of Education v. Union Free School District No. 7..............................20, 30 Wahrman v. Board of Education.........................- 89, 139 Walker v. Best -..... -----—......-.......................204, 205, 207 Williams v. Board of Trustees of District No. 1................................... 141 Williams v. Rivenburg -....................................- - 152 Winteringham v. Lafoy........................................................... 72 NORTH CAROLINA Alexander v. Lowrence.............................................................. 69 Clodfelter v. State........ —..........-.. ---- 76 Drum v. Miller..................................................................................... 221 H utchins v. D urham................................................................................... 61 Kelderhouse v. Brown..............................55, 178, 204 Lewis v. Carr....... ----—.......... 185 Logen v. Hodges............................................................................... 183 Smith v. Robertsonville Graded School..............................13, 18 Spruill v. Davenport..............................179, 181 State v. Long............-....................- 220 State v. Pendergrass........................-...... —194, 220, 224, 230, 231, 232 State v. Stafford....................................225, 231 State v. Thornton...........................- 215, 218, 225, 227, 230, 231, 233 Swain v. Johnson...-..........................-... --- —-. 73 NORTH DAKOTA Anderson v. Board of Education of Fargo...................27, 29, 89, 100, 238 Anderson v. City of Fargo.................................. 38, 38, 77, 81, 238 Board of Education of Rugby v. Nelson.................................. 159 Gillespie v. School District No. 8.......................-...........50, 65 Kenmare School District No. 28 v. Cole................................................. 19 Martin v. Craig..... —.....-........................ --- —------------ 61 Minot Special School District v. Olsness....................................17, 17, 32, 50 Pronovost v. Brunette......-.......... —............. --- —---- 27, 31, 50 Rhea v. Board of Education of Devils Lake............................ 0, 62 State v. Tucker.. —......-..-...-..-..................... 65 OHIO Board of Education of Cincinnati v. McHenry....................................89, 108 Board of Education of Cincinnati v. Volk...................13, 16, 27, 28, 89, 96 Board of Education v. Milligan........................................................54, 156 Table of Cases Cited 255 PAGE Board of Education of Sycamore v. State................................................ 68 Cline v. Martin -......... ---.................................................. 38 Diehm v. Cincinnati............................................................................38, 77, 81 Finch v. Board of Education of Toledo................13, 15, 27, 28, 89, 90, 100 Gregory v. Small............................................................................. 179 Hopple v. Trustees of Brown Township................................................... 9 Quinn v. Nolan............................. 221 Roe v. Deming.................................... 174 Sewell v. Defiance Union School Board of Education............................ 198 State ex rel. Milhoof v. Board of Education............................................ 62 Stewart v. Southard.........-......... ----................. 170 OKLAHOMA Dawkins v. Billingsley...2.............................................. 207 Joint School District No. 132 v. Dabney......................................... 19 Kellogg v. School District No. 10........................................................68, 69 Ryan v. Humphries......................................................................... 6 School Board District v. Thompson......................................................... 61 School District No. 1 v. Wright................................13, 15, 27, 89, 107, 165 School District No. 17 v. Zediker............................................ 27, 31, 33 School District No. 74 v. Long............................................................ 54 State v. Lawton..... -............................38, 39 OREGON Antin v. Union High School District.......................... 123 Baxter v. Davis.................................................................. 50 Crawford v. District School Board........................................................ 50 Jacobberger v. School District No. 1...................................................... 27 Lupke v. School District No. 1........................... 121 Northwest Steel Co. v. School District No. 16.......................... 147 Payette-Oregon Slope Irrigation District v. Peterson.................... 9 Samuel v. Vinyard..................................................................... 186 Spencer v. School District No. 1.............................................27, 89, 97, 119 State v. Goff....................................................... 69 W agner v. Portland...................................................................................... 121 Wiest v. School District No. 24, Marion County........................89, 110, 119 PENNSYLVANIA Ayer's Appeal....................................................................... 17 Barnet v. School Directors............. —.............. 13, 49, 53 Board of Education of Ransley......... ----.................... 45 Briegal v. City of Philadelphia.................................................. 83 Burton v. Fulton....................... —.. —............179, 180 Chalfant v. Edwards -........................................................................... 38 Commonwealth v. Beamish................................................ 13 Commonwealth v. Butler............................................................................ 19 256 Table of Cases Cited PAGE Commonwealth v. Fell................................................................................ 220 Commonwealth v. Fletcher -..................................... 66 Commonwealth v. Jenks..................-.... -.......... 68 Commonwealth v. Seed............................... 215, 220, 222, 229, 230, 231 Dickinson Township v. Linn............................................... 155 Duffield v. Williamsport School District............................................... 62 Erie School District v. Fuess.................................................. 13, 89, 91, 95 Ford v. School District of Kendall Borough.....................13, 27, 89, 90, 99 Gilbertson School District v. M orris......................................................27, 51 Hoag v. Lake Shore and M. S. Ry. Co............................................ 73 Lyon v. Strock...............................................................17, 27 McCullough v. City of Philadelphia........................................ 77, 81 Miller v. Clement.............................................................. 67 Miller v. Harvey...............................................................................179, 180 Mulligan v. School District.................-....................-.. 50 Price v. Conway............-....-.......................... 209 School District of Erie v. Fuess...-..-.... —..-.............. 27 Stull v. Reber............................................... --- 62 Wharton et al. v. School Directors.....................................19, 68 RHODE ISLAND Cole v. Fire Engine Co..........-...-........... —.. 9 Wixom v. City of Newport.......................77, 80 SOUTH CAROLINA Gallishaw v. Jackson........-.... ---..-..-..-...-.. 27 SOUTH DAKOTA Dahl v. Independent School District No. 2-.......................50, 53, 68 De Rockbrain School District v. Northern Casualty Co................... 158 Edgerton School District No. 2 v. Volz............. --- —--- - 158, 159 Handelan v. Smee School District No. 4... --- —-—...... ---....... 147 Plumbing Supply Co. v. Bd. of Ed. of Canton..... 17, 17, 30, 147, 153, 161 Streich v. Board of Education of Aberdeen.................. - - 62 TENNESSEE Anderson v. State.-...-....................215, 217 Finney v. Garner........................ -------—. — 65 Johnson City Board of Education v. Ray....-......................... 166 State v. Copeland............... --—.......-.. 159 State v. Leonard. --- —.. --—.-......... -... —.... 65 Weatherly v. Chattanooga...-............ —................. 45 TEXAS Balding v. State......-.... —............ ---...... --- 222 Crabb v. Celeste School District............... --- —----—.. ----..... 65 Table of Cases Cited 257 Denna Independent School District v. First State Bank -............. 67 Dill v. State...........- -215, 232 Dowlen v. State...........................-...................... 222, 223, 225 Ely v. State.......-.-........ 221, 222, 223 Floydada Independent School District v. Shipley............................ 27, 31, 32 Graves & Houtchens v. Diamond Hill District.......................................... 53 Greer v. State.....................-.....-......... 219, 230 H ailey v. Brooks............................................6..................... 60 H am ilton County v. Garrett........................................................................ 8 H arris v. State.............................................................-........................ 225, 229 H endricks v. State............................29................................ 27, 29 Hutton v. State..........-............... 63, 196, 219, 222, 224 Kinnard v. State............................................ 225, 229, 232 M cSween v. Board of Trustees.................................................................... 62 McVey v. City of Houston....................... -.......................... 77, 80 M etcalf v. State....................................................................... 219, 222, 224 Pendergrass v. Masterson.................... 235 Royse Independent School District v. Reinhart........................................ 50 Sm ith v. State...................................................2......................... _. 228 Spear v. State.......... -25........................ 225 Staffel v. San Antonio School Board 62 Stanfield v. State............ -......................... 222, 223, 225, 226, 232 State v. Sm ith.............................................................I............................ 225 Thomason v. State................................-.. -222, 224 Thompson v. Elmo Independent District 63 Trustees of Chilcothe Independent District v. Dudney -. 67 W hitley v. State...............................................................-........ 225, 226, 229 Wilson v. State........ 225, 229 Zucht v. San Antonio School Board............................................................. 17 UNITED STATES Allen v. City of Brooklyn -------------------------------------------------------------------------- 77, 81 A tkins v. K ansas................................................. 51 Attorney-General v. Lowrey.....................-....... 26, 30, 34 Beers v. Arkansas.............-.............................................. 75 Board of Education v. DeKay...................................................................... 37, 39 Dartmouth College v. Woodward......................................-........ 3, 6 Decatur v. Paulding...............-. 69 Dickson v. U. S.-. — 6 D ooley v. U. S...............................-........................................................... 75 Laramie County v. Albany County et al.................. 34 Levy Court v. Coroner........................................................9........................ 9 Marbury v. Madison ------------------------------------------------------------------—..........151 National Waterworks Co. v. Kansas City School Dist. No. 7-... 12, 42, 45 N alle v. O yster..........-................................................................... 186 Pollard v. Lyon.............................................................................. 7 3, 183 258 Table of Cases Cited Tem ple v. U. S......................................................................... 75 United States v. Cruikshank................................................... 23 United States v. M aurice.................................................................. 6 UTAH M errill v. Spencer.................................................... 38 State ex rel. Cox v. Board of Education.................................................. 62 Woodcock v. Board of Education of Salt Lake City.......................13, 27, 69 VERMONT Crosby v. School District No. 9................................................................... 210 Farmer v. Haley.................................................................................. 44 H athaway v. Rice........................................................................ 225, 229, 232 Lander v. Seaver........63,196,215,216,217,219,220,222,223,225,226,228, 232 M ack v. K elsey.................................................................................... 200 North Troy School District v. Troy........................................................... 38 VIRGINIA State v. Thornton............................................................................ 65 WASHINGTON Bailey v. School District No. 49................................................................ 128 Barnhart v. C. M. & St. P. Ry. Co......................................................... 93 Bruen v. North Yakima School District No. 7....................................... 128 Foley v. Pierce County School District No. 10...................................... 128 Heva v. Seattle School District No. 1....................................... 91, 98 Holt v. School District No. 7........................................ 128 Howard v. Tacoma School District No. 10................................13, 27, 89, 126 Kelly v. School District No. 11...................................... 128 Maxon v. Spokane County School District No. 34......................19, 147 Morris v. Union High School District...................................................... 131 Phillips v. Hardgrove..................................... 131 Redfield v. School District No. 3....................................... 31, 32,125 Rice v. School District No. 302 of Pierce County.................................... 130 Smith v. Seattle School District No. 2...................................... 93 Stovall v. Toppenish School District No. 49...................................... 130 Swanson v. School District No. 15......................-...-.......... 129 Wayland v. Board of Directors of Seattle...................................... 63 WEST VIRGINIA Capehart v. Board of Education...................................... 65 Coberly v. Gainer et a.................................................................... 65 Cunningham v. Board of Education.................................. 66 Dooley v. Board of Education...................................... 52 Eakle v. Board of Education of Henry.................................................... 16 Herald v. Board of Education...............................13, 15, 27, 68, 69 Table of Cases Cited 259 Tal of C=e Cie 259............ Honaker v. Board of Education.................................................................. 50 Krutili v. Board of Education of Butler District.......................27, 89, 104 Spedden v. Board of Education of Fairmont.........................................55, 68 WISCONSIN American Foundry and Furnace Co. v. Board of Education................ 64 Butler v. Joint School District No. 4........................................................ 66 Butler v. Regents of the University............................................ 7 Edson v. Hayden............................................................................................ 157 Folk v. City of Milwaukee...................................................................77, 80 Iverson v. Union Free High School District..............................17, 18, 27, 50 Janesville School District No. 3 v. Macloon.................................... 13, 56 Juul v. School District of Manitowoc...............................................27, 89, 99 Leahy v. Joint School District No. 12.....6................................. 66 Lowe v. Conroy.............................................................................. 152 Madden v. Kinney........................................................................................ 45 Morrow v. Wood....................................................................................196, 218 Roger-Ruger Co. v. Board of School Directors............................. 64 Schaut v. Joint School District.................................................................. 17 School District No. 1 v. Larson................................................................. 158 Srnka v. Joint District No. 3............................................................... 89 State v. Board of Education of Fond du Lac............................................ 61 State v. Burdge................................................................................... 62 State ex rel. Burfee v. Burton................................................................194, 195 State ex rel. Dresser v. District Board...................................................... 64 State v. Milquet....................................................................................19, 50, 56 Stroud v. Stevens Point................14..................14, 42 Sullivan v. School District No. 1............................................................89, 104 BIBLIOGRAPHY BOOKS Bardeen, C. W. Common School Law.....Syracuse: C. W. Bardeen, Publisher, 1888. 120 pp. Bartlett, Lester William. State Control of Private Incorporated Institutions of Higher Education. Teachers College, Columbia University, Contributions to Education, No. 207. New York: Bureau of Publications, Teachers College, Columbia University, 1926. 95 pp. Bender, John Frederick. The Functions of Courts in Enforcing School Attendance Law. Teachers College, Columbia University Contributions to Education, No. 262. New York. Bureau of Publications, Teachers College, Columbia University, 1927. 187 pp. Bohlen, Francis H. Cases on the Law of Tort. (2nd ed.) Indianapolis: The Bobbs-Merrill Company, 1925. 1140 pp. Carmichael, Hobart Verner. Judicial Decisions Relating to Legal Liability of School Boards in the United States. Unpublished Master's Thesis. University of Chicago, 1926. 94 pp. Cook, William W. A Treatise on the Law of Corporations Having a Capital Stock. (8th ed.) New York: Baker, Voorhis Co., 1923. 6 vols. Cooley, Roger W. Brief Making and the Use of Law Books. (Revised, 3rd ed.) St. Paul: West Publishing Company, 1921. 633 pp. Cooley, Roger W. Handbook of the Law on Municipal Corporations. St. Paul: West Publishing Company, 1914. 711 pp. Cooley, Thomas M. A Treatise on the Law of Torts. (3rd ed.) Chicago: Callaghan and Company, 1906. Vols. I and II. Dickinson, John. Administrative Justice and the Supremacy of Law in the United States. Cambridge: Harvard University Press, 1927. 403 pp. Dillon, John F. Commentaries on the Law of Municipal Corporations (5th ed.) Boston: Little, Brown & Company, 1911. Vols. I and IV. Edmonson, James Bartlett. The Legal and Constitutional Basis of a State School System. Bloomington: Public School Publishing Company, 1926. 203 pp. Engelhardt, Nicolaus Louis. Public School Business Administration. New York: Teachers College, Columbia University, 1927. 1068 pp. Flanders, Jesse Knowlton. Legislative Control of the Elementary Curriculum. Teachers College, Columbia University, Contributions to Education, No. 195. New York: Bureau of Publications, Teachers College, Columbia University, 1925. 242 pp. Fletcher, William Meade. Cyclopedia of the Law of Private Corporations. Chicago: Callaghan and Company, 1917. Vol. I. Bibliography 261 Frasier, George W. The Control of City School Finances. Milwaukee: The Bruce Publishing Company, 1922. 132 pp. Freund, Ernst. Cases on Administrative Law. (2nd ed.) St. Paul: West Publishing Company, 1928. 745 pp. Hamilton, Otto Templar. The Courts and the Curriculum. Teachers College, Columbia University Contributions to Education, No. 250. New York: Bureau of Publications, Teachers College, Columbia University, 1927. 168 pp. McGaughy, J. R. Fiscal Administration of City School Systems. New York: Macmillan Company, 1924. 95 pp. McQuillan, Eugene. The Law of Municipal Corporations, (2nd ed.) Chicago: Callaghan and Company, 1928. Vols. I and IV. Mechem, Floyd R. A Treatise on the Law of Public Offices and Officers. Chicago: Callaghan and Company, 1890. 751 pp. Morehart, Grover Cleveland. The Legal Status of City School Boards. Teachers College, Columbia University Contributions to Education, No. 270. New York: Bureau of Publications, Teachers College, Columbia University, 1927, 96 pp. Moreledge, Albert Raymond. School Discipline as Regulated by Statute. Unpublished Master's Thesis. University of Iowa, 1925. Morrison, John Cayce. The Legal Status of the City School Superintendent. Baltimore: Warwick & York, Inc., 1922. 162 pp. Newell, (Martin L.) Mason H. The Law of Slander and Libel in Civil and Criminal Cases, (3rd ed.) Chicago: Callaghan and Company, 1914. 1318 pp. Odgers, W. Blake. The Law of Libel and Slander. (5th ed.) Philadelphia: Cromarty Law Book Company, 1912. 956 pp. Olsen, Hans Christian. The Work of Boards of Education. Teachers College, Columbia University Contributions to Education, No. 213. New York: Bureau of Publications, Teachers College, Columbia University, 1926. 170 pp. Smith, Harry Pearse. The Business Administration of a City School System. Teachers College, Columbia University Contributions to Education, No. 197. New York: Bureau f Publications, Teachers College, Columbia University, 1925. 129 pp. Spelling, Thomas C. and Lewis, James Hamilton. A Treatise on the Law Governing Injunctions. St. Louis: The Thomas Law Book Company, 1926. 851 pp. Thompson, Seymour D., and Joseph W. (White, Edward F.) Commentaries on the Law of Corporations. (3rd ed.) Indianapolis: The Bobbs-Merrill Company, 1927. Vol. I. Trusler, Harry Raymond. Essentials of School Law. Milwaukee: The Bruce Publishing Company, 1927. 429 pp. Voorhees, Harvey Cortlandt. The Law of the Public School System of the United States. Boston: Little, Brown, and Company. 1916, 478 pp. 262 Bibliography Woodward, Frederic Campbell. The Law of Quasi Contracts. Boston: Little, Brown, and Company, 1913. 498 pp. Wyman, Bruce. The Principles of the Administrative Law Governing the Relations of Public Officers. St. Paul: Keefe-Davidson Company, 1903. 641 pp. LEGAL PERIODICALS (a) ARTICLES. Borchard, Edwin M. Government liability in tort. Yale Law Journal, Vol. 34, pp. 1-45, 229-258 (Nov., 1924). Borchard, Edwin M. Governmental responsibility in tort. American Bar Association Journal. (Aug., 1925) p. 496. Borland, William P. Law of schoolmaster and pupil as to punishment. Michigan Law Review. Vol. 2, p. 198. Brown, Irving. The schoolmaster's birch. Green Bag. Vol. 12, p. 249 (1900). De Furia, Guy. The distinction between governmental and municipal functions of municipal corporations as applied in the law of torts. University of Pennsylvania Law Review. Vol. 75, pp. 555-563 (Apr. 1927). Harne, Albert J. Tort immunity of municipal corporations. Illinois Law Quarterly. Vol. 4, p. 28 (1921). Maguire, J. M. State liability for tort. Harvard Law Review. Vol. 30, p. 20 (1916). School teacher: rights and liabilities in relation to his pupil. Canadian Law Journal. Vol. 23, p. 365. Stedman, B. Regulation and punishment of conduct of pupils out of school. Virginia Law Register (New Series) Vol. 4, p. 415 (1918). (b) CASE NOTES. Discipline and state owned institutions. Central Law Journal. Vol. 97, p. 187 (June 5, 1924). Governmental functions of municipal corporations, exemption from liability for torts. Wisconsin Law Review. Vol. 2, p. 250 (July, 1923). Governmental liability in tort, schools and municipal corporations. West Virginia Law Quarterly. Vol. 32, p. 151 (Feb., 1926). Jurisdiction of school authorities; punishment of pupil. Cornell Law Quarterly. Vol. II, pp. 266-270 (Feb., 1926). Liability for inflicting corporal punishment upon a child. Michigan Law Review. Vol. 24, p. 597 (April, 1926). Liability for injuries to pupils. Minnesota Law Review. Vol. 7, p. 597 (June, 1923). Municipal corporations; schools and school districts; liability in tort. Minnesota Law Review. Vol. 10, p. 628 (June, 1926). Torts-schools and school districts. Dakota Law Review. Vol. I, p. 177 (Apr., 1928). Bibliography 263 NON-LEGAL PERIODICALS AND MONOGRAPHS Deffenbaugh, W. S. Recent improvements in city school administration. American School Board Journal (Oct., 1918) p. 23. Deffenbaugh, W. S. Shall boards of education be independent of municipal government? American School Board Journal (Aug., 1924) p. 46. Deffenbaugh, W. S. The school board in city school survey reports. American School Board Journal (Aug., 1920) p. 23. Diamond, Thomas. Liability of school authorities for accidents to pupils. American School Board Journal (Oct., 1925) p. 53. Douglas, O. W. Park and playground accidents. American School Board Journal (June, 1927) p. 56. Good, Carter V. The present status of the law relating to certain school matters. Peabody Journal of Education. Vol. 3, p. 313-320. (May, 1926). Hunter, Hugh Allen. The personal liability of school board member with reference to hazards to pupils. American School Board Journal (Feb., 1924) p. 53. Jarvis, Paul G. H. Recent supreme court decisions on teacher contracts. School and Society. Vol. 24, pp. 153-8, 193-8 (Aug. 7, 14, 1926). Jones, William E. Right of school authorities to exercise control over pupils outside of school. American School Board Journal (May, 1927) p. 47. Jurisdiction of school authorities and punishment of pupils. American School Board Journal (Jan., 1927) p. 108. Prince, Harold A. Liability of school districts in Nebraska for personal injury. American School Board Journal (Feb., 1926) p. 67. Smith, Lyndon A. Recent supreme court decisions. U. S. Bureau of Education, Circular No. 4. Washington, D. C.: Government Printing Office, 1883. Thiel, Richard B. An analysis of the nature and frequency of supreme court cases in school law for the calendar year of 1927. Journal of Educational Research. Vol. XIX, p. 177. (March, 1929). Thiel, Richard B. Protecting teachers and pupils by workmen's compensation acts. The Nation's Schools. Vol. 3, p. 40 (Jan., 1929). Wells, C. O. Judicial decisions relating to suspension and expulsion from school. Elementary School Journal. Vol. 27, pp. 573-84 (Apr., 1927). Woellner, Robert C. Liability of school boards in case of accidents. American School Board Journal. (April, 1927) p. 49. LAW REPORTS (a) NATIONAL REPORTER SYSTEM-containing reports in full of decisions of the courts of record of the various states, and of the federal courts. St. Paul: West Publishing Company, 1879 and published to 264 Bibliography 264 Bblioraph date with weekly advance sheets. The system consists of the following "reporters": (1) The Atlantic Reporter, Est. 1885. Reports completely decisions of courts of last report of: Me., N. H., Vt., Conn., R. I., N. J., Pa., Del., and Md. (2) The Federal Reporter, Est. 1888. Reports fully all decisions of the United States Circuit, District, and Circuit Court of Appeals. (3) The New York Supplement, Est. 1888. Reports fully decisions of the Supreme Court and lower courts of record in New York State. (4) The Northwestern Reporter, Est. 1879. Reports completely decisions of courts of last report in: Mich., Wis., Minn., Iowa, Neb., Dakota, N. D. and S. D. (5) The Northeastern Reporter, Est. 1885. Reports completely decisions of courts of last report of: N. Y., Mass., Ohio, Ill., and Ind. and the intermediate Appellate Court of Ind. (6) The Pacific Reporter, Est. 1883. Reports fully decisions of courts of last report in: Calif., Colo., Idaho, Ore., Mont., Nev., N. M., Kan., Okla., Ariz., Utah, Wash., and Wyo. (7) The Southeastern Reporter, Est. 1887. Reports completely decisions of courts of last resort in: Va., W. Va., N. C., and Ga., and intermediate court of appeals of Ga. (8) The Southern Reporter, Est. 1887. Reports completely decisions of courts of last resort in: Ala., Fla., La., and Miss. (9) The Southwestern Reporter, Est. 1886. Reports completely decisions of courts of last resort of: Mo., Ark., Indian Territory, Texas, Ky., and Tenn., and intermediate courts in Mo. and Tex. (10) The Supreme Court Reporter, Est. 1882. Reports completely the decisions of the United States Supreme Court. (b) STATE REPORTS (Official). The reports of each state of the decisions of their own courts of last resort, and sometimes lower courts of record. (c) SELECTED CASE SERIES-containing the following reports: American Decisions (1760-1869) San Francisco: A. L. Bancroft and Company, 1878, 1888. American Reports (1870-1887) Albany: John D. Parsons, Jr., Publisher, 1871-1887. Lawyers Reports Annotated (1887-1906) New Series (1906 -1918) Rochester, N. Y.: The Lawyers' Co-operative Publishing Company. American State Reports (1888-1911) San Francisco: BancroftWhitney Company, 1888-1911. American and English Annotated Cases (1904-1910) Northport, L. I., N. Y.: Edward Thompson Company, 1906-1911. Bibliography 265 American Annotated Cases (1910-1916) San Francisco: Bancroft-Whitney Company; Northport, L. I., N. Y.: Edward Thompson Company, 1912-1918. American Law Reports (Follows Ann. Cases 1918E to present time, and L. R. A. 1918F to present time.) Rochester, N. Y.: The Lawyers' Co-operative Publishing Company; Northport, L. I., N. Y.: Edward Thompson Company; San Francisco: Bancroft-Whitney Company. SELECTED CASE REPORTS NOTES (a) AUTHORITY AND JURISDICTION. Right to exclude, suspend, or expel pupils from school for misconduct of pupil or parent.-Lawyers Reports Annotated (New Series) Vol. 50, p. 266. Power to require vaccination.-Lawyers Reports Annotated (New Series) Vol. 17, p. 709. Power of school authorities over pupils while outside of school.Lawyers Reports Annotated (New Series) Vol. 3, p. 496. Right of school authorities to control pupils when going to and from school.-Lawyers Reports Annotated, Vol. 62, p. 160. Right to exclude, suspend, or expel pupils from school for misconduct of pupil or parent.-Lawyers Reports Annotated, Vol. 41, p. 593. Authority, duties and powers of school teachers.-American Decisions, Vol. 76, p. 165. The power of the schoolmaster to punish.-American Decisions, Vol. 31, p. 419. Power to expel or suspend pupil from school.-Annotated Cases, Vol. 1918A, p. 400. Power to expel or suspend pupil from school.-Annotated Cases, Vol. 15, p. 404. (b) LIABILITY OF THE CORPORATION. Liability of school district or school corporation in tort.-Lawyers Reports Annotated (New Series) Vol. 49, p. 1026. Liability of municipal corporations for tort in connection with buildings used by it.-Lawyers Reports Annotated (New Series) Vol. 25, p. 88. Liability of school district or school corporation to action for damages from negligence.-Lawyers Reports Annotated, Vol. 37, p. 301. Liability of municipal corporation for defective condition of public school premises.-Annotated Cases, Vol. 3, p. 884. (c) IDIVIDUAL LIABILITY TO INJURED PUPILS. Personal liability of school authorities for dismissal or suspension of pupils.-American Law Reports, Vol. 42, p. 757. 266 Bibliography Liability of school teacher for personal injury to pupil.-Lawyers Reports Annotated, Vol. 65, p. 891. Powers and liabilities of school teachers in relation to pupils.American State Reports, Vol. 102, p. 537. (d) LIABILITY FOR LIBEL AND SLANDER. Libel and slander: Privilege in reports or statements about school pupils.-American Law Reports, Vol. 12, p. 147. Libel and slander: Privilege of school superintendents or other teachers on character of teacher.-Lawyers Reports Annotated (New Series), Vol. 30, p. 200. Libel and slander: Privileged character of complaints to public officer against subordinate.-Lawyers Reports Annotated (New Series), Vol. 27, p. 1044. Official report by executive or administrative officer as privileged communication. - Lawyers Reports Annotated (New Series), Vol. 5, p. 163. SEARCH BOOKS American Digest System. Century Edition, 1658 to 1896, Vol. 43; Decennal Edition, 1897 to 1906, Vol. 17; Second Decennial Edition, 1907 to 1916, Vol. 20; Third Decennial Edition, 1916 to 1926, Vol. 24; Current Digests. Blue Book of National Reporter System. St. Paul: West Publishing Company, 1928. "Complete tables showing the volume and page of the Reporter for every case found in the corresponding State Reports." Complete Digest of all Lawyers Reports Annotated (1888-1918) 10 Vols. Rochester, N. Y.: The Lawyers' Co-operative Publishing Company, 1921. Descriptive-word Index to the First and Second Decennial Digests (With Third Decennial Supplements) St. Paul: West Publishing Company, 1924-1928. Digest of the United States Supreme Court Reports. (to 1921) Rochester, N. Y.: The Lawyers' Co-operative Publishing Company, 1908. Green, Edmund Samson. Digest of Decisions in the American State Reports, from 1887 to 1904. San Francisco: Bancroft-Whitney Company, 1904. Green, Edmund Samson. Digest Supplement of Decisions in the American State Reports, from 1904 to 1909. San Francisco: Bancroft-Whitney Company, 1909. Green, Edmund Samson. Index-Digest to the Monographic Notes in the American State Reports, Volumes 1 to 140. San Francisco: BancroftWhitney Company, 1912. Index to Legal Periodicals and Law Library Journal. (The American Association of Law Libraries.) New York: The H. W. Wilson Company. Martin, George J. Numerical Table of Cases Reported in the American Bibliography 267 Decisions, American Reports, American State Reports, and American Annotated Cases. San Francisco: Bancroft-Whitney Company, 1912. Readers' Guide to Periodical Literature. New York: The H. W. Wilson Company. Rose, Walter Malins. (Thompson, Chas. L.) Rose's Notes on the United States Supreme Court Reports. San Francisco: Bancroft-Whitney Company; Rochester, N. Y.: The Lawyers' Co-operative Publishing Company, 1917-1926. Ross, Peter V. Index to the Notes in American Annotated Cases, Volumes 1912A to 1914C. San Francisco: Bancroft-Whitney Company, 1915. Shepard's Citations. Atlantic Reporter Citations; Northeastern Reporter Citations; Northwestern Reporter Citations; Southeastern Reporter Citations; Southwestern Reporter Citations; Pacific Reporter Citations; New York Supplement Citations. Also Shepard's citations for the various states. New York: The Frank Shepard Company. Table of Cases, 1658-1906, Decennial Digest, American Digest System St. Paul: West Publishing Company. Table of Cases (1906-1918) 2nd. Decennial Digest, American Digest System. St. Paul: West Publishing Company. MISCELLANEOUS Corpus Juris. New York: The American Law Book Company. "A complete and systematic statement of the whole body of the law." Cyclopedia of Law and Procedure. Vol. 35. New York: American Law Book Company. Cyclopedic Law Dictionary. (2nd ed.) Chicago: Callaghan and Company, 1922. 1131 pp. Rawle, Francis. Bouvier's Law Dictionary. Kansas City: Vernon Law Book Company; St. Paul: West Publishing Company, 1914. 3 Vols. Ruling Case Law. Northport, N. Y.: Edward Thompson Company; San Francisco: Bancroft-Whitney Company; Rochester, N. Y.: The Lawyers' Co-operative Publishing Company. INDEX PAGE Absence and tardiness as reason for suspension of pupil................ 198 Accidents on playgrounds, liability of school district for........ 100-105 Acid, liability of school district for injuries caused by............ 99, 100 Adult pupils, corporal punishment of....................... 233 teacher's authority over............ 196 Administrative officers, definition.. 150 teachers as..................... 194 tort liability of, in general...... 151 Administrators of schools, legal authority of as shown by general rules of tort liability........ 193, 212 Alabama corporate character of school districts of............... 11 resolutions, power of city boards of education to pass 58 Albuquerque, N. Mex., city-school district relationship in................ 38 Apparatus, defective, city tort liability in relation to................... 80 Arizona, corporate character of school districts of..................... 11 Assault, definition of..................... 72 Assault and battery, corporal punishment as, in absence of sufficient cause................... 217 Assembly and petition, rights of.... 72 Assumption of risk......................... 73 Athletic apparatus. See: Gymnasium apparatus. Washington statute limiting liability of school districts for injuries upon.... 127 Athletic exercises, non-liability of school districts for pupils in.. 103 Athletics. liability of Washington school districts for injuries to pupils participating in. 131 non-liability of school districts to pupils injured in....116, 117 Attorneys, power of school corporations to employ. 54 Attractive nuisance doctrine. —102, 103 Attributes of corporations.-. 4 Bad faith, place of in imposing liability upon school officers. --- —-------- 165 Bad motive, effect of upon liability in corporal punishment cases 231 Ballentine's definition of a corporation..4................. 4 Banking systems in schools, power to establish.. 56 PAGE Bannisters, low, liability of school districts for injuries caused pupils by................ 96-97 Battery, definition of................ 72 Bible, exclusion of pupil for refusal to read................. 171 Blackstone................ 4 Blasting, city liability to persons injured by............... 80 Board members, powers and duties of.............5......................... 66-58 Bonds school corporation's power to issue............................ 54 school officer's liability for selling below par.................. 156 Bookkeeping, parent's right to direct child not to study................ 61 Books, defacing of as cause for corporal punishment...... 219 Borchard, Edwin M., on government liability in tort.................. 237 Borrowing money, school corporations power to................... 54 Branches of study, school board's power to determine -------------------- 55 Breaking of school property as cause for corporal punishment-... 218 Bus drivers, liability of Washington school districts for negligence of. --- —----------------— 132 Business establishments, liability of school officers for injuring trade of.................... 161 Buzz saw, non-liability of school districts for injury to pupil by 105 Cafeteria, non-liability of school district for injury in maintenance of.......................... 107 California. Ahern v. Livermore Union High School District, leading case of.134 chemistry, liability of school district for injury caused by explosion....................... 137 constructive notice of defective conditions. ---.-.-135, 137 incinerator, liability of school district for injuries caused by. 135 history of statute creating liability....... 133-134 manual training equipment, liability of school districts injuries caused by. --- —-------- 134 piano, liability of school district for injury to pupil by a falling.136 Index 269 PAGE proximate cause of injury........ 137 school district - city relationship in........................................ 40 tort liability of school districts in - general......................133-138 unique position on tort liability of school districts........... 138 welding, liability of school districts for injuries caused by 137 Carelessness as cause for corporal punishment..2.......................... 218 Ceilings, falling, liability of New York school districts for injuries caused by................................ 139 Charges against pupils, liability of superintendents of school for preferring................................. 201 Chemicals, liability of school district for injuries caused by.....99-100 Chemistry. liability of California school districts for injury caused by explosion................-... —.. 137 liability of school district for injuries to pupils in study of 93 non-liability of school districts for injuries in unauthorized experiments.................. 144 Cincinnati, non-liability of school district of in physical and medical care of pupils............................ 108 Cities. See Municipal corporations. corporate functions of.............. 76 exclusion of pupils from school, Massachusetts statute on wrongful............................ 84 governmental functions of........ 76 school buildings, liability of, in relation to......................... 79 tort liability of......................... 76 City and school. legal relation of........................ 35-45 effect of relationship on city tort liability................... 81-82 relationship of city and school in court decisions..................37-45 Civil rights, definitions..................... 72 Classification of public officers........ 149 Clerk of school board. ministerial and discretionary duties of........................... 57 records, obligation to keep........ 57 Coke's definition of a corporation 3 Commissions to school district treasurer.................................... 58 Common-law of the school...... ----.... 195 Common-law rule of non-liability of school districts. tort.......................................87-111 source of.. —....-......................... 114 statement of rule............. 88 Communications of school officers, privilege of.......-...-......... 185-186 Concealed weapons, carrying of as cause for corporal punishment.... 219 PAGE Confidential relation of teacher to pupils....................................... 196 Constitution of U. S. and education............................... 22 Constitutional limitations on state control of school districts.......... 33-84 Constitutional provisions on schools 22 Constitutional weaknesses of pupils, effect of in corporal punishment, liability of teachers..... 221 Construction and repair of school buildings, liability of school district for injuries during -—..-...... 94-95 Construction of statute granting powers and duties to school corporations - -...................... 52-56 Contagious disease, false charges of being infected with, as slander 183 Contracts, school officers' interest in............................ 57 Contractors' bonds. individual liability of school officers for neglect to take.... 153 liability of school districts for injuries caused by neglect to take............................. 146 non-liability of school district for neglect to take —......... 110-111 school officers' individual liability for neglect to take...... 159 Contractor's negligence, non-liability of school district for.. ---.... 103 Contributory negligence...-...... ---...........73, 102, 105, 131, 134, 136, 144 Cooking, parent's right to direct child not to study.......................... 61 Corporal punishment. acts away from school as cause for infliction of.............. 219 adult pupils, authority to inflict upon............................. 233 authority to inflict in general...-..................... 214-235 bad motives, effect of, upon liability in........................ 231 books, defacing of as cause for punishment........................ 219 breaking of school property as cause for........................... 218 carelessness as cause for......... 218 cause, sufficiency of.............217-220 causes for infliction of............. 218 comments on allowal of.......... 240 concealed weapons, carrying of as cause for..................... 219 constitutional weaknesses of pupils, effect of upon liability for causing permanent injuries........................... 221 death of pupil, criminal liability of teacher for causing.... 221 declamation, refusal of pupil to perform as cause for........ 219 discretion, exercise of, in.......... 215 disobedience as cause for...... 219 excessive, liability for.........224-227 270 Index PAGE excessive and unreasonable, illustrations of......................... 228 excessive whipping, liability of school officers for permitting...........................-. 176 impudence as cause for............ 219 instruments of punishment, destruction of, as cause for infliction of.............. ---.. 219 insubordinate language as cause for.-..-..................... 219 insubordination in general as cause for........................ 219 insulting conduct as cause for 219 judgment, exercise of, in.......... 232 judgment, exercise of, in determining sufficiency of cause for and degree of punishment......................... - 225 legal instruments of..-..... —... 224 liability of school officers for infliction of...-................ 175 limitations upon infliction of.. 217 malice, effect, of, upon liability -.................... 233 misconduct of another pupil as insufficient cause -—..........- 218 moderate punishment, non-liability of teacher for inflicting. ---.................. 221 moderation as a requirement in use of................................... 217 New Jersey, prohibition of, in 216 obedience to lawful commands of parents, illegality of punishment for.......- -......-... 218 obscenity as cause for -............. 219 permanent injury, liability of teacher for inflicting.......-. 220 previous misconduct as cause for..-..................... —. 218 prohibition of, in New Jersey 216 reasonableness of, determination of.-................ 225 severity, determination of legal.-...............-....... 223 speaking aloud by pupil as insufficient cause for.........-...... 217 State v. Pendergrass, leading case of -.....................-... 220 statutory right to inflict......... 216 superintendents of schools, authority of, to inflict —......... 234 swearing as cause of.-..-....... —. 219 teacher's right to inflict.....214-217 unreasonable, liability for.224-229 unreasonable rules, illegality of punishment for violations of.-............-............... 218 Vermont, statutory right to inflict in.-..-.......... --- ——. 216 Corporate powers and duties of school corporations, summary of 51 Corporations. in general, definitions-........-.. 2 aggregate............-............-.. 4-5 artificial persons, as.................. 4 PAGE Ballentine's definition of.-...... 4 civil............-... ----. 4-5 definitions, Coke's; Kyd's; Marshall's......................... 3 ecclesiastical..-.................-... 4-5 eleemosynary -...-............ —. 4-5 kinds of -..... --- —---—. --------—... ----—.. 4-5 lay.-..................-.......... 4-5 municipal.................................. 4-5 municipal, definition................6-7-8 principal attributes.............-.. 4 private..-.............. --- ----------—.. 4-5 private, definition and illustrations.................................... 6-7 public..-...-................... 4-5 quasi...-............-........-.... - 4-5 quasi-public...................-. 4-5 sole -—.......... --- —---—.. -—. 4-5 tort liability of...................... 74 Court control of action of school boards........................... 67-69 Courts on municipal-school control................ --- —.. —. --- ——.37-45 County superintendents of schools. communications of, as privileged.............................. 186 malice in reporting on character of teachers, effect of. —... 205 privilege in reporting upon character of teachers-.......... 205 Criminal offenses, false charges of, as slander.......-................ 183 Crimes as torts.................................. 73 Cruelty, neglect; charges of against teacher as actionable slander.-....................... 186 Dancing, parent's right to direct child not to study.......................... 61 Death of pupil, criminal liability to teacher for causing —....... 221 Declamation, refusal to perform as cause for corporal punishment.....-..................... 219 Defamation, definition of.............-..72-73 Defamation in general.-...........-182-185 Defective conditions of school buildings, liability of school districts for injuries caused by —.............96-98 Deffenbaugh, W. S....................... 35 Dentist, school. Non-liability of school district for negligence of 108 Denver, non-liability of school district of for pupil's injury.......... 103 Dependence of school districts upon municipalities.. —....-.....-....... 40-43 Detention of pupils...-.......... — 201-202 Discipline, authority of school officers individually to enforce. --- —. 175 Discretion...-.....-.160, 164, 165, 169-170 abuse of.........-..........-66-67, 156 corporal punishment, exercise of, in.......-......... -- - 215, 229 delegation of, illegality of....... 65 determination of degree of corporal punishment, in.-... 225 teachers' use of, in punish Index 271 PAGE ment of pupils........................ 200 tort liability in exercise of...... 151 Discretion of school board. exercise of.............................. 59 school board's grant of............ 58 Dismissal and ejection of teachers, individual liability of school officers for................................177-182 Dismissal of teachers....................... 177 forcible ejection of teacher, liability of school officers for 182 malice and bad faith, effect of 179 uncertified, of.......................... 180 Disobedience as cause for corporal punishment.............................. 219 Drunkenness, exclusion of pupil for 171 Dual control of school corporations in certain cities............... 43-45 Education as a governmenal function....... --- —.............-. - 28 Electric wire on school grounds, liability of school district for injury caused by.......................... 130 Elevator shaft, defective, school district's liability for injuries caused by............................... 97 Elevators. Liability of New York school districts for injuries caused by unguarded................. 144 Engelhart, N. L............................... 36 Erection of school buildings, liability of school districts for injuries during....-........................... 94-95 Excavations, city non-liability for injuries to pupils by falling into 80 Exceptions to the general rule of non-liability of school corporations in tort......................... 113-147 Executive officers, tort liability of 150 Excessive corporal punishment, illustrations of.................... 228 Excessive corporal punishment, liability for infliction of......224-229 Exclusion of pupils. liability of school officers for.. 168 parents', extent of right of suit of............................. 173 statutory reasons for........169-170 tardiness, for.......................... 170 Experiments, liability of school districts for injuries to pupils in unauthorized chemical............ 93 Expulsion and suspension of pupils.......................................... 197-201 Extra-muralacts of pupils as cause for corporal punishment............ 219 authority of school officers....62-64 authority of teachers............... 196 operation of rules and regulations.................... 161 False imprisonment, definition of.. 72 False imprisonment, detention of pupils as....-...-................ — - 202 Fargo, N. Dak., playground injury case............ —....... —....... 100 school-city relationship in....... 38 PAGE Fees, illegality of requirement from pupils........................... 198 Fidelity bonds, liability of school officers for turning funds into hands of officers without.......... 156 Field day exercises. power of school board to provide............................ 56 school officers' liability for injuries during........................ 166 Finality of decisions of school boards.................-........ 669 Fines, school corporation's power to impose................................. 55 Fire, liability of school district for injuries caused pupils, in starting........................... 99-100 Fire-escape, school officer's liability for injuries on....................... 168 Flagpole. liability of New York school district for death caused by falling of a.................... 140 Oregon, liability of school district in, for injury of a painter of a................. 120-122 Flogging, liability of school officers for permitting teachers to inflict excessive............................. 176 Food-chopping machine, non-liability of school district for an injury caused by a...................... 107 Football. liability of Washington school district for injuries to pupil participating in................. 131 non-liability of school district for injury to pupil in............ 117 Franchise, corporation as a...... 4 Fraud and deceit, definition-....... 73 Fraudulent purchases, liability of school officers for.................. 156 Frazier, G. W................................... 36 Funds. criticism of absolute liability of school officers for loss of 240 lack of, in school districts as reason for non-liability in tort.................................. 89 liability of school officers for misapplication and misappropriation of................... 155 releasing of school treasurer for loss of funds............ 158-159 school treasurer's liability for loss of........................ 158-159 school treasurer's liability for refusal to turn over funds to successor.................... 156 stolen, liability of school treasurer for.......1........... 158-159 Good motives in corporal punishment, effect upon liability...... 229 Governmental function of school districts...-.......................... 165 education as a..-.. —.....-...-........ 28 lunch room, operation of, as a 107 272 Index PAGE manual training machines, installation and operation of, as..................................... 104 medical care of pupils as........ 108 painting flagpole as ministerial function.......................... 121 transportation of pupils as a 105-106 Governmental non-liability in tort 74 criticism s of.............................. 237 Grammar, parent's right to direct child not to study...................... 61 Gymnasium apparatus. liability of New York school districts for injuries caused by defective........................... 140 liability of Washington school districts for injuries from, under old statute................ 126 school officers' liability for pupil injuries from defective.... 166 Health. certificates of, power of school board to require................. 62 vaccination, power of school board to require.......... --- —-. 62 Hill v. City of Boston, leading case of............................ 78 Hole in school-room flooring, liability of New York school district for injuries caused by....... 139 Home study, power of school to require...................................... 64 Hot water, liability of Washington school district for injuries from....................... 125 Ice, liability of cities to persons injured on............................. 80 Ice and snow, liability of Michigan school districts for injuries caused by falling.1............................... 145 Idaho, constitution of, on education....................................... 24 Immorality of teachers, false charges of, as actionable slander 185 non-liability of school district for libelous charges of....... 110 with pupils.... —................ 197 Impudence of pupil as cause for corporal punishment.................... 219 Incinerator, liability of California school district for injuries to pupil from an....................... 135 Incompetency of teachers, false charges of as actionable slander 185 Indecent exposure, false charge of against pupil as slander or libel 208 Independence of school districts from cities...............................37-40 Independent contractor doctrine... 103 Individual liability of school board members for torts of school corporation..............................1......... 152 Infants, tort liability of................. 74 Injunction. power of school corporation to use........................................ 54 PAGE school boards' actions, use of to control.............................. 69 Instruction. Parents' power to designate pupils' studies............. 61 Instruments of corporal punishment, legal.............-............. —.... 224 Instruments of punishment, destruction of, as cause for corporal punishment. —............. 219 Insubordinate language as cause for corporal punishment of pupil................................... 219 Insubordination as cause for corporal punishment... --- —....... 219 Insulting conduct as cause for corporal punishment.................. 219 Insulting language toward teacher, punishment of pupils for using away from school premises 63-64 Invitees, non-liability of New York school districts for injuries to.... 141 Janitors, liability of school districts for negligence of -.......98, 100 Judicial definition and classification of school districts...........12-13 Judicial officers, tort liability of.... 150 Judgment. See: Discretion of School Board. exercise of, by school boards.. 58 exercise of, in infliction of corporal punishment............ 232 non-liability of school officers for error in........................... 165 teachers' non-liability for errors in................................ 201 Kansas City, school district-city relationship in.............................. 42 Kent............................ 4 Kerosene, liability of school district for injuries caused by exing........................ 99-100 Kinds of corporations......... ---...... 4 Kyd's definition of a corporation.... 3 Land, right of school corporation to take donation of................. 49 Legislative control of school districts........................... 30, 35, 50 Legislative officers, tort liability of 150 Legal authority of school officers. as demonstrated by their tort liability in relation to pupils and teachers........ 164-191 as shown by their tort liability in relation to the school board..-.............. --- —149-163 Legal person, a corporation as a.. 4 Legal position of the public school corporation............-......... 22 Legal status and authority of teachers.............................. 194 Lessons, refusal to prepare as reason for suspension of pupil........ 198 Liability of school corporations in tort. exceptions to the general rule of non-liability................113-147 Index 273 PAGE extent of allowing recovery against school corporations 114 Libel and slander. in general. 72-73, 182-186 character of pupils, teacher's authority to make statements concerning. 207-209 character of teachers, liability of superintendents and principals when commenting on............. 204-207 communications between board members............. 186 communications of school officers, privilege of............ 185-186 communications to superiors, privilege of............. 189 contractors, charges against competency of, as slander.... 190 employment of teachers, reasons against, as slander...... 188 falsity, place of, in defamation generally................... 183 falsity of statements, effect of knowledge of, upon privilege 184 immorality, charge of, against teacher as actionable slander................... 186 incompetency of teacher, statement of, as actionable slander................... 209 indecent exposure, false charge of................... 208 insanity of pupil, false charge of, as slander..................... 208 libel, definition of.................... 182 libel, non-liability of school district for................... 110 Oregon tort liability statute as applied to................... 118-119 per se actionable defamation 183-184 privilege................... 184 privilege of superintendents in reports on character of teachers................. 204-207 proof of damage, necessity of 183-184 public discussion, privilegeof school officers in................... 190 publication................... 182 resolution of school board as defamation.................... 187 slander, classification of.......... 183 slander, definition of.............. 182 statements not defamatory...... 209 superintendents of schools, liability of, when commenting upon character of teachers..... —........... ---.. —...... ---204-207 teachers, against, in general 185-191 teachers' criticisms of other instructors........................... 209 License, necessity of, to valid contract of teacher........................... 53 PAGE Licensees, liability of school districts for injuries to.................... 97-98 Lightning, liability of school districts for injuries caused pupils by..................... 96 Loans, liability of school treasurer for improperly securing.......... 157 Lobbying contracts, school corporations inability to make............ 53 Loco parentis. corporal punishment, teacher's right and limitations in use of, from status of................. 217 legal position of a teacher, as 194 Lunchroom, non-liability of a school district for injuries in the operation of a..................... 107 Maine, corporal punishment, right of teachers to inflict in.......... 214-217 Majority rule in actions of school boards...................... 66 Malice and bad faith. detention of pupils, effect of on liability of teachers in.... 202 effect of, in corporal punishment cases................. 233 effect of, in lawful rules and regulations................. 211 effect of, in liability for dismissal of teachers................ 179 effect of, on privilege of school officers' communications 185-186 place of, in imposing liability upon school officers generally.1................. 164-172 teachers', effect of, on liability of, for punishment of pupils...................... 200 Mandamus. power of school corporation to use................. 54 school board actions, use of, to control................................ 68 Manual training equipment. liability of New York school districts for injuries to pupils by................. 142 non-liability of school districts for injuries by...... 104-105 non-liability of school districts to trespassers injured by................. 143 power saw, liability of California school districts for pupils injured by................. 134 school district liability forinjuries to pupils in the use of 129 Washington statute limiting liability of school districts for injuries caused by.......... 127 Marshall's definition of a corporation. --- —----------------- 3 Maryland. constitution of, on education.. 24 non-liability of school district of, for death -of pupil on a playground................. 100 274 Index PAGE Massachusetts, exclusion from school in, statute on...................... 84 Master and servant principle in non-liability of school districts in tort............................. 91 McGaughy.............................. 36 McQuillan... 4 Medical and physical care of pupils, non-liability of school districts to pupils injured in.... 108 Meetings of school board, place of holding. --- —------------- 65 Michigan. corporate character of school districts in. 14 general statutory powers and duties of school boards in-... 48 liability of school districts for results of maintenance of a nuisance...................... 145 Ministerial acts.............. 160 Ministerial duties....................... 210 Minnesota athletics, non-liability of school districts for injury to pupil in. --- —------------— 117 history of statute on liability of school districts 115-117 non-liability of school districts, for pupil injuries.. 102 non-liability of school districts to teachers who contract disease in school buildings. --- —----------------— 117 playground injury, non-liability of school district for-... 116 school bus, non-liability of school districts to pupils injured by. 107-116 statute on tort liability of school districts.......... 115-117 Misappropriation and misapplication of funds, liability of school officers for.............. 155 Missouri. Contractors' bonds, liability of school officers for neglect to take. --- —-------------—... ----159 Moderate corporal punishment, non-liability of teachers for inflicting.. 222 Monetary loss to school corporations, teachers liability for causing....................................... 209 Montana, general statutory powers and duties of school corporations in....... 48 Morehart, G. C........ 36 Morrison, J. C....... 36 Mortgage, liability of school treasurer for illegally releasing.... 157 Motortruck, pupil injured by, nonliability of school district for.... 102 Municipal corporations. blasting, non-liability to persons injured by....... 80 corporate functions of. 76 PAGE defective apparatus, tort liability in relation to................ 80 definition. --- —-------------------— 5, 7 dual nature of................... 76 excavations in school yards, non-liability to pupils falling into —... --- —-—..........-80 governmental functions of.... 76 ice, liability to persons injured on..80 Massachusetts statute on wrongful exclusion of pupils......... 84 non-liability for torts of school boards, illustrated in Hill v. City of Boston.-..-78 nuisance, recoveries allowed for maintaining upon school premises. --- —------------------— 83 saws, non-liability for pupils injuries by......... 80 school and city separation, effect of, on city tort liability...................8...... 81-82 school buildings, city liability for torts in relation to. 79 school districts as municipal corporations. --- —--------—...-....-18-20 school premises, tort liability in relation to 80 sewage, liability for, when escaping from school premises 83 tort liability of, in general-... 76 torts of school boards, genereral rule of non-liability for. --- —-------------------— 71-85 walls, liability to pupils falling from.... 80 water, non-liability for damage caused by escaping.... 82 Municipality and school corporation. --- —--------— 35-45 Music, parents' right to direct child not to study....... 61 Name, change of district, effect. 56 Negligence........ 73 Nevada, constitution of, on education. 24 New Hampshire, transportation of pupils, non-liability of school district for injury in. --- —-------------- 106 New Jersey, corporal punishment, prohibition of, in.......................... 216 New Mexico, constitution of, on education........................... 25 New York. ceiling, falling, liability of school district for injuries caused by. --- —------ 139 corporal punishment, teacher's right to inflict in.. 215 development of New York Rule of liability of school districts in tort. --- —------ 139-143 elevator, liability of school district for injury caused by unguarded............ 144 Index 275 PAGE flag pole, liability of school district for injury caused by a falling......................... 140 gymnasium apparatus, liability of school district for injury caused by defective.... 140 hole in flooring, liability of school district for injury caused by......................... 139 liability of school districts in tort............................... 138-145 manual training equipment, liability of school districts for injuries by..................... 142 non-liability of school districts for injuries caused by unauthorized experiments in chemistry........................ 144 nuisance, liability for maintaining.................................. 140 playgrounds, non-liability of school districts for negligence of supervisors upon.. 144 property, liability of school districts for wrongful taking and using....................... 140 school officers, individual nonliability for torts of the school corporation................ 154 stairwells, non - liability of New York school districts to trespassers injured by falling into........................... 143 statement of New York Rule of liability of school districts in tort......................... 139 transportation of pupils, liability of school districts for injuries in........................... 141 truant officers, non-liability of school districts for torts of 108-109 unique position held in tort liability of school districts.... 144 New York City, school corporation-city relationship.........4..... 41-42 New York union free school districts........................................... 19 Newspaper articles on character of teachers, superintendents' privilege in................................. 205 Normal school president's privilege to comment on a student's character....................................... 208 North Carolina. constitution of, on education.. 22 leading corporal punishment case, State v. Pendergrass.. 220 North Dakota, corporate character of school districts of........ 10 Notice of meetings of school boards...................................... 65 Nuisance. city liability for, on school premises............................ 140 liability of New York school districts for maintaining.... 140 PAGE liability of school districts generally for maintaining.. 145 Obscenity as cause for corporal punishment of pupils.................... 219 Officers. See also: School Officers. administrative............................ 150 public, classification of.......... 149 public, tort liability of.............. 150 Ordinance of 1787............................ 22 Oregon. confusion in construction of tort liability statute............ 124 construction of statute, tendency to exclude remedy by 121 flag pole, liability of district for injury to painter of a 120-122 history of statutes on tort liability of school districts..117-120 libel, non-liability of school districts for............110, 118, 119 radiator, non-liability of school district for an injury caused by a defectively placed 119, 120, 122 statutes of, on liability of school districts in tort....117-124 water pressure tank, non-liability of school district for injury by explosion of.......... 123 Parents. exclusion of child, right of suit for............................... 173 illegality of corporal punishment of pupils for obedience to lawful commands of........ 218 selection of child's studies, power of............................... 196 Parental rights, violation of, by school regulations........................ 171 Parental selection of pupil's studies............................ 61 Parties, validity of rule that no pupil to attend....................... 171 Peoria, Ill. School district-city relationship in................................ 41 Permanent injury, liability of teacher for inflicting.................. 220 Petition and assembly, rights of.. 72 Physical and medical care of pupils, non-liability of a school district for injuries to pupils in providing.................................. 108 Piano, liability of California school district to a pupil injured by a.. 104 Playground. apparatus, Washington, liability of school districts under old statute for injuries caused by..........................128-129 injuries, liability of school district for................... 100-105 non-liability of New York school districts for negligence of teachers in supervising..................... 104 276 Index PAGE Washington statute limiting liability of school districts for injuries upon............ 127 Powers and duties of the school corporation. in general.............................. 47-69 attorneys, employment of........ 54 construction of statutes granting.........................................52-56 delegation of discretionary powers............................. 56 effect of quasi corporate character of districts...............49-51 employees, control of............... 55 fines, power to impose on employees.................................... 55 injunction, use of............. 54 mandamus, use of................ 54 procedure in exercise of authority............................... 64-67 punishment of pupils.............. 64 pupils, control of............55-56 pupils, control of, away from school premises...............62-64 sue and be sued, power of...... 51 summary of corporate............ 51 teachers, dismissal of............. 55 trespassers, board's power to sue................................... 54 vaccination, power to require 62 Physical condition of pupils, certificate of, power of school board to require.................................. 62 Practice teaching, power of school board to allow............................... 55 President of school board, power of, to personally bring a suit for the board............................. 57 Principal and agent rules in nonliability of school districts in tort...............-...............-.. 91 Principal of schools. See: Teachers; Superintendent and Principal of Schools. Privilege.............................-.. 73 Privilege in libel and slander......... 184 Privilege of superintendents and principals of schools in comments upon character of teachers...............................204-207 Profession or trade, false charges damaging to person in, as slander..................................... 183 Property, liability of New York school districts for wrongful taking and using - -............... 140 Proximate cause 73, 101, 105, 137, 167, 168 Proximate cause of injury, nonliability of school districts in tort when negligence not.-........ 92 Public discussion, privilege of school officers in.................... 190 Public officers. classification of..................... 149 school officers as................56-57 teachers as................................ 194 PAGE Punishment of pupils...............-..... 64 away from school, for acts committed.................... 196 immorality away from school grounds, for.................. 64 insulting language, for using when away from school grounds.................................63-64 teachers' authority as to.......... 194 Pupils. acts away from school as causes for corporal punishment....................................... 219 adults as pupils, teachers' authority over........................... 196 adults, authority to inflict corporal punishment upon.. 233 athletic exercises, non-liability of school district for injuries in.................................. 103 Bible, exclusion of pupil for refusal to read................. 171 books, defacing of, as cause for corporal punishment.... 219 breaking of school property as cause for corporal punishment of................................ 218 carelessness as cause for corporal punishment of........ 218 character of, illustration of actionable libel of................ 208 character of, teacher's authority to make statements concerning.......................207-209 charges against, liability of superintendent of schools for preferring................... 201 common-law of the school, presumption of pupil's knowledge of.........................- 195 concealed weapons, carrying of, as cause for corporal punishment.................... 219 constitutional weaknesses of, effect of on liability for causing permanent injuries 221 contributory negligence.......... 102 control of, away from school..62-64 control of, by school board....60-64 corporal punishment, causes for infliction of.................. 218 excessive and unreasonable, illustrations of...... 228 excessive, liability of teachers for inflicting 224-229 legal authority to inflict 214-235 legal instruments of....... 224 legal severity, determination of..............-......- 223 liability of school officers for infliction of........... 175 limitations upon infliction of.......................... - 217 sufficiency of cause for..217-220 Index 277 PAGE death of, criminal liability of teacher for causing.............. 221 declamation, refusal to perform as cause for............... 219 detention of.........................201-202 disobedience of, as cause for corporal punishment............ 219 drunkenness away from school, exclusion of, for.................. 171 exclusion of, from school, Massachusetts statute making towns liable for wrongful.... 84 exclusion of, for tardiness...... 170 exclusion of, judgment of school officials in case of...... 169 exclusion of, parent's right to sue............................................ 173 exclusion of, school officers' liability for.............................. 168 exclusion of, statutory reasons for...........................169-170 extra-mural operation of rules and regulations..................... 161 fees, illegality of requirement of................................. 198 health certificates, power of school board to require........ 62 home study, power of school to require........................... 64 immorality away from school grounds................................... 64 impudence as cause for corporal punishment.................. 219 indecent exposure, false charge of, as slander or libel.......... 208 injuries, illustration of want of remedy for...................... 238 insanity, false charge of, as slander........................ 208 instruments of punishment, destruction of, as cause for corporal punishment............ 219 insubordinate language as cause for corporal punishment....................................... 219 insubordination of, as cause for corporal punishment...... 219 insulting conduct as cause for corporal punishment............ 219 insulting language, power of school to punish for, away from school premises..........63-64 lessons, refusal to prepare, as reason for suspension........ 198 libel of character by teacher.. 207 machine, non-liability of district for pupil's injury in playing upon................... 102-103 misconduct of another as insufficient cause for corporal punishment........................... 218 motives, effect of, upon liability of teachers for infliction of corporal punishm ent....................................229-231 absence and tardiness as reasons for suspension.............. 198 PAGE obedience to lawful commands of parents, illegality of corporal punishment for.......... 218 obscenity as cause for corporal punishment...................... 219 parties, validity of rule prohibiting attendance at........ 171 permanent injury, liability of teacher for inflicting............ 220 physical and medical care, non-liability of school district in.................................... 108 previous misconduct as cause for corporal punishment.... 218 punishment for acts committed away from school.......... 196 punishment of......................... 64 refusal to instruct a pupil, liability of teacher for............ 203 required subjects, liability of teachers for exclusion of pupils who refuse to study.. 199 required subjects, necessity of studying................................. 61 rules and regulations, reasonableness of...........-............... 60 school boards' control of.......60-64 school officers' liability for exclusion of pupil for refusal to study required subject.... 169 school officers' liability in relation to, in general........ 164-191 speaking aloud as insufficient cause for corporal punishment................................ 217 stairwell, non-liability of school district for injury to pupil falling into.......................... suits, proper parties to bring 93 suspension and expulsion...197-201 swearing as cause for corporal punishment...................... 219 teachers' authority of government of pupils away from school.................. 211 teachers' right to inflict corporal punishment............214-217 transportation, non - liability of school districts in........ 105-107 transportation of, liability of New York school districts for injuries to pupils in........ 141 trespassers, non-liability of school districts to............. 101-102 truants, non-liability of school district to...................... 101 uniforms, power of school to require wearing of.............. 63 vaccination, liability of teacher and superintendent for illegally excluding pupil who refuses.............................. 199 vaccination, power of school board to require.................. 62 violation of unreasonable rules, illegality of corporal punishment for........................... 218 278 Index PAGE Purchases, fraudulent, liability of school officers for - 156 Quasi corporations ------------------------ 5 definition of 7, 8 description of - 8 effect of status upon powers and duties - 49-51 explanation of status of school districts as - 14 New York union free school districts as exceptions 19 outline of. 5 school districts as............. 12 Quasi - municipial c o r p o r a t i o n, school district as a... 17, 20 Quasi-public corporation. definition of.- - -- 7 difference from a school corporation. --- —----- 16 school district as a... 20 Quorum, necessity of, in school board action. --- —--- 65 Quo warranto, use of, to test powers of school corporations - 69 Radiator. non-liability of school district for injuries caused by a dangerously placed -... 97 Oregon statute as inapplicable to liability of school district for injuries caused by a................-. --- —---—.119, 120, 122 school district, non-liability for pupil injuries caused by a, generally -... —... — 103 Reasonableness of rules and regulations ----------- 60 Records, obligation of clerk to keep 57 Records of school board actions, requirement of ----------- 66 Register, liability of teacher for failure to keep -----------------------... 209 Regulations of school boards. See: Resolutions of school boards; Rules and Regulations. limitations of power to pass.. 59 pupils, in control of -..-....60-64 quo warranto, use of, to test validity of action -------------- 69 Repairs upon school house, individual liability of school officers for neglect to make -152 Repairs, school corporation's power to make- -----------------------------— 52-56 Reports on character of teachers, superintendent's privilege in 204-207 Resolutions of school boards. See: Rules and Regulations. in general..... 58-64 court control of ----- 67-69 discretion, exercise of.. 59 finality of decisions -- 67-69 jurisdiction in general -- 59 jurisdiction over pupils away from school premises.. 62-64 reasonableness of.. 60 PAGE vaccination, power of board to require ----------------— 62 Required subjects, liability of school officers for exclusion of pupil for refusal to study -. 169 Required subjects, liability of teachers for exclusion of pupils who refuse to study -. 199 Rhetoric, parents' right to direct child not to study - -... 61 Rules and regulations. See: Resolutions of school board; Regulations of school boards. authority of, away from school grounds -161 liability of teachers for suspension of pupils for violation of unreasonable rules 197-198 malice, effect of, on lawful rules and regulations ---------- 211 pupils, rules in control of-. 60-64 reasonableness of - 60 teacher's authority to make.... 194 unreasonable rules, illegality of corporal punishment for violations of.......................... 218 St. Louis. cafeteria, non-liability of school district of, for an injury in operation of.............. 107 non-liability of school district for pupil injury -------------------- 102 non-liability of school districts of, in tort generally.............. 103 Sale of school property, method of 52 Saws, city non-liability to person injured by, in schools - ------------------- 80 School accidents, non-liability of school officers for. -.... 164 School and city relationship, effect of, on city tort liability -81-82 School board members. See: School officers. public officers, as........................ 29 suits against, school corporation's inability to defend.... 53 School boards. See: School corporations; School districts; School officers. appointment of members, systems of ---------------------— 35-36 control of action by courts — 67-69 corporate character of, by statute ----------- 9 discretion, abuse of - 66-67 exercise of ------------------— 58-59 illegality of delegation of 65 finality of decisions of -...67-69 injunction, use of, to control action of ---------------------— 69 limitations on power to pass regulations -- - - 59 majority rule in action - 66 mandamus, use of, to control actions of......................... 69 Index 279 PAGE meetings, place of holding...... 65 notice of meetings, requirement of................................. 65 officers, liability of in relation to school board................149-163 powers and duties in general.. 47 powers and duties, statutory.. 52 procedure in exercise of authority............................... 64-67 pupils, power to control..........60-64 quo warranto, use of, to control actions of..........-....... 69 quorum, necessity of, in action 65 records of action, requirement of............................................ 66 regulations, power of, in relation to...................................58-64 resolutions as defamation........ 187 School buildings. bannisters, liability of school districts for injuries caused by defective..........................96-97 ceilings, falling, liability of New York school districts for injuries caused by......... 139 city liability for torts in relation to................................ 79 construction of, school corporation's liability for injuries during......-.................94-95 contractors, charges against competency of, as slander.... 190 defective condition of, school district's liability for injuries due to............................96-98 disease, non-liability of school district to teachers contracting, in..................................... 117 elevator shaft, defective, liability of district for injuries caused by................... 97 erection of, board's power of.. 53 erections and repairs, city tort liability in relation to.......... 79 holes in flooring, liability of New York school districts for injuries caused by.......... 139 maintenance, tort liability for injuries during.................. 98-100 radiator, dangerously placed, liability of school district for injury caused by............ 97 repairs of, school corporations liability for injuries during 94-95 school officers' non-liability in selecting plans for............ 165 stair railings, liability of school districts for injuries caused by defective...... —..... 96-97 stairwells, liability for injuries to pupils falling into... 101 School buses. See: Transportation of pupils. School corporations. See: School district; School board; School officers; Pow PAGE ers and duties of school corporation. accidents on playgrounds, liability for........................ 100-105 attorneys, power to employ...... 54 contractor's negligence, nonliability for...................... 103 criticisms of non-liability of 237-240 dependence of, upon cities......40-43 difference from municipal corporation............................. 15 difference from quasi-public corporation..................... 16 dual control of school corporations in certain cities......43-45 employees of, control of........... 55 independence from cities........37-40 injunction, power to use......... 54 instruction, power to supervise............................... 55-56 involuntary corporations, as.. 16 janitor, liability of, for negligence of............................98-101 judicial definition and classification of......................... 13 land, right to take donations of........... 49 legislative control of...........30-35 licensees, liability for injuries to..-..................... 97-98 maintenance of school plant, tort liability for injuries in 98-100 mandamus, power to use........ 54 municipal corporations, as...... 18 municipality - school relationship......................................35-45 New York union free school districts as complete corporations.......... —...... —...-.... --- 19 playground injuries............100-105 powers and duties of..............47-69 construction of statutes granting..............51, 52, 56 statutory.................. 52 summary of corporate. 51 proximate cause, non-liability in absence of......................... 92 quasi corporate character of, effect of, on powers and duties............................ 49-51 resolutions, general power of board to pass........-....... 58-64 school buildings, construction and repair, liability for injuries during.............-. 94-95 school buildings, defective condition of, liability for injuries due to.............................96-98 sources of power of......... 2 state agencies, as..... ----..... 25 state agency, exception to usual rule.......................... 28 state, and the.........-......... 22 state control of..................0-51 280 Index PAGE statutes on corporate character of....................................47-52 sue and be sued, inference of right to................................... 49 sue and be sued, power of........ 53 taxes, power to levy.................. 51 teachers' negligence, non-liability for............................... 103 tort liability of, common-law rule of........87-111 exceptions to general rule of non-liability.......... 113-147 funds, lack of, as reason for non-liability............................ 89 master and servant principle as reason for nonliability of.................... 91 principal and agent rule as reason for non-liability of........................ 91 recency of tendency to allow recovery.................. 114 tort liability of, statement of rule of non-liability 88 statutes providing........114-135 suggestion as to change in law of........................ 240 torts of, general rule of nonliability of municipalities for....................................... 77 trespassers, non-liability for injuries to.......... 101, 102, 105 trespassers, power to sue........ 54 variations in classification of 20 variations in terminology of classification of.................. 17 work of..-...............-...... 47-69 School corporations and municipalities.-...................... 35-45 School corporations and the state.. 22 School directors. See: School board members; School officers; School trustees. Public officers, as..................... 29 School districts. See: School corporations. athletic exercises, non-liability of, for pupil injuries in.. 103 construction of statutes granting powers and duties........ 51 contractors' bonds, non-liability of, for neglect to take..110-111 control of, by legislatures, as illustrated by territorial division and apportionment..32-35 corporate character of, by statute 9 corporate existence of........... 1 dependence upon cities........ 40-43 dual control of school corporations in certain cities.. 43-45 explanation of quasi corporate character of.........................- 14 Florida, position on state agency of.................................. 28 independence from cities........37-40 PAGE legal existence of...................... 1 legislative control of................30-35 libel- non-liability for............. 110 machine, non-liability of, for injuries to pupils playing upon.................................102-103 manual training equipment, non-liability of, for injuries to pupils by......................104-105 medical and physical care of pupils, non-liability in.......... 108 motor truck, non-liability for pupil injuries by.................. 102 municipal corporations, as..... 18 municipality - school relationship......................................... 35-4 New York Rule of liability of school districts in tort....138-145 New York union free school districts............. --- —---—..... 19 Oregon statute on tort liability of school districts.......117-124 powers and duties...............47-69 construction of statutes granting.......................52-56 summary of corporate...... 51 quasi corporate character, effect of, on powers and duties............................ 49-51 radiator, liability to pupil injured by a............................. 103 state agents, as.................. 25 state control of.................... 50-51 sue and be sued, inference of right to................................. 49 taxes, power to levy.................. 51 territorial division and apportionment of................... 32-35 tort liability of California statutes creating............................133-138 common-law rule of nonliability.-.............. 87-111 exception to general rule of non-liability......113-147 funds, lack of, as reason for non-liability............ 89 statement of rule of nonliability.................. 88 statutes providing.......114-135 suggestion as to change in law of...........-... 240 transportation of pupils, nonliability for pupil injuries in......................................105-107 truant officers, non-liability for torts of.....................108-109 truants, non-liability for injuries to................. 101-102 variation in terminology of classification of............. 7, 20 Washington statutes on tort liability of and their construction.........................124-133 work of................................47-69 Index 281 PAGE School house, individual liability of school officers for neglect to make repairs on....................... 152 School officers. See: School board members; School directors. accidents, liability and nonliability for................. 164 authority to individually enforce discipline................. 175 bad faith, place of, in imposing liability................. 165 bonds, fidelity, liability for turning funds into hands of officers without................. 156 bonds, liability for selling below par................. 156 books, prohibition to act as agents for sale of................ 57 charges against teacher of cruelty, incompetency and neglect, liability for............ 186 clerk, duty of, to keep records 67 clerk, nature of duties of, generally................. 57 contractors, charges against competency of, as slander.... 190 contractors' bonds, liability for neglect to take............ 153-159 corporal punishment of pupils, liability for infliction of.... 175 corporal punishment of pupils, liability for permitting teacher to inflict excessive.. 176 discipline, authority to individually enforce................... 175 discretion of. See: Discretion. exercise of, in exclusion of pupils............. 169-170 non-liability for injuries in exercise of.................. 166 discretionary duties of.............. 166 excavations, non-liability of, for pupils injured by falling into................. 154 exclusion of pupils, liability for wrongful................. 168 exclusion of pupils, non-liability for lawful. --- —----------- 170 field day exercises, liability for injuries during.............. 166 funds, criticisms of absolute liability of school officers for loss of................. 240 funds, liability for misapplication and misappropriation of 15, fraudulent purchases, liability for................. 156 gymnasium apparatus, liability for injuries by defective 166 hardship of individual liability................. 160 immorality of teacher, liability for false charge of.......... 185 individual contracts, prohibition of................. 57 PAGE judgment, non-liability for error in........................ 165 legal authority of as demonstrated by their tort liability in relation to pupils and teachers.............................. 164-191 legal authority of as shown by their tort liability in relation to the school board..149-162 libel and slander. communications to superiors, as........ 189 teachers' comments on character of board members........ 209 teachers, of, in general...........................................185-191 liability for not allowing teachers to perform contract................... 180 malice and bad faith, effect of, in dismissal of teachers...... 179 malice and bad faith, effect of, on privilege of communications................... 185-186 malice and bad faith, place of, in liability of. --- —------------- 164-172 ministerial acts, liability for neglect or refusal to perform..................... 160 ministerial duties of................ 166 personal interest in contracts, prohibition of..................... 57 powers and duties of.............. 56-58 president's lack of power to bring suit for board............ 57 privilege of communications of 185, 186 privileged communications of.. 188 procedure in exercise of authority.................... 64-67 proximate cause, necessity of, to impose liability upon........ 167 public discussion, privilege in 190 public officers, as.................... 56-57 repairs to school house, individual non-liability for neglect to make................... 152 required subjects, liability for exclusion of pupil for refusal to study................... 169 school buildings, non-liability in selecting plans for........ 165 state officers, as....................... 56-57 subordinates, non-liability for torts of................... 154 teachers, dismissal and ejection of, liability for........ 177-182 teachers, liability for forcible ejection of. --- —-------------—.... --- —182 teachers, liability for illegally paying... 155 tort non-liability of, for torts of school corporation... 152 tradesmen, liability for injuring business of... 161 282 Index PAGE treasurer See: School treasurer. criticisms of absolute liability for loss of funds 240 duty of, to pay claims... 58 illegality of commissions to..................................... 58 liability for loss of school funds........................158-159 liability for paying improperly drawn warrants............................. 157 liability for paying unlicensed teachers........ 157 liability for refusal to turn over funds......... 156 right to bring suit to recover money.....-......... 58 workmen, non-liability for torts of.................................. 154 School plant, tort liability of school district for injuries arising in maintentance of........ 98-100 School premises, city tort liability in relation to................................ 80 School treasurer. See: Treasurer. funds, liability for loss of 158, 159 loans, liability for improperly securing.........................-.... - 157 mortgage, liability for illegally releasing................ 157 refusal to turn over funds, liability for........................... 156 releasing of, from liability for loss of funds..1............... 8, 159 stolen funds, liability for 158, 159 uncertified teacher, liability for paying.-.......................... 157 warrants, liability for paying improperly drawn......... 157 School trustees. See: School board members; School officers; School district. public officers, as...........-. 29 School yards, liability of school districts for injuries to pupils falling into unguarded holes in.. 101 Selection of school board members, methods of.........................35-36 Self defense...... —.. 73 Sewage, city liability for escaping, from school premises. ---....... 83 Shop keepers, non-liability of teachers to, for diverting trade 210 Slander and libel. See: Libel and slander. definitions....................... 72-73 Social position of teachers........ 197 South Carolina, State v. Pendergrass, leading corporal punishment case of.........-.......... 230 South Dakota; contractors' bonds, non-liability of school officers individually for neglect to take 153 PAGE South Dakota, health certificates, power of school boards in, to require...............-............-. 63 Stair railings, liability of school district for injury to pupil caused by defective............-........... 96-97 Stairwells, liability of New York school districts to pupils injured by falling into..................... 143 Stairwells, liability of school districts for pupils injured by falling into.................... --- —- - 101 Stairwells, non-liability of school districts for persons injured by falling into. —...... -........... 103 State agency of school corporations.25 tions........................ ---- ------- 25 State and the school corporation.. 22 State control of school corporations......................... 50-51 State officers, school officers as......56-57 States, non-liability of, in tort...... 74 Statutes allowing action in tort against school districts, in California.................................. 133-138 Statutes allowing recovery against school districts in general...114-135 Statutes on tort liability of school districts, Oregon...................117-124 Stolen funds, liability of school treasurer for..................... 158-159 Store keepers, liability of school officers for injury to trade of.... 160 Store keepers, liability of teachers to, for diverting trade................ 210 Studies, parents' power to designate -------—................... 61 Subordinates, non-liability of school officers for torts of....................... 154 Sue and be sued, inference of right of school corporations to.. 49 Sufficiency of cause in corporal punishment............................ 217-220 Suits against school board members, district's inability to defend................. --- —-- -.. 53 Suits, proper parties to being for pupil injuries.................... 93 Superintendents and principals of schools. See: Teachers; Pupils; Corporal punishment. authority to inflict corporal punishment.................. 234 character of teachers, liability in libel and slander when commenting upon.......204-207 character of teachers, necessity of good reasons for believing statements true concerning. —.............- -.... 206 corporal punishment, illustration of want of authority to inflict................... 214-235 corporal punishment, limitations upon use of............ 217 Index 283 PAGE legal authority of, as shown by general rules of tort liability...............................193-212 libel and slander of, by means of school board resolutions.. 187 libel and slander, comments on character of board members on.................................... 209 preferring charges against pupils, liability for................... 201 privilege in comments on character of teachers........... 204-207 public discussion on character of teachers, privilege in...... 205 suspension of pupils................ 198 vaccination, liability for illegally excluding pupil who refuses.................................. 199 Suspension and expulsion of pupils 197-201 Swearing as cause for corporal punishment............................ 219 Swing, non-liability of school district for injury to pupil by........ 100 Tardiness, exclusion of pupil for.. 170 Taxes, school corporation's power to levy........................5.......... 61 Teachers. adults, authority to inflict corporal punishment upon...... 233 adults in school, authority over generally..................... 196 authority and power of............ 194 authority over pupils away from school.................. 196 carelessness, statements of concerning teachers as slander.......................... 207 character of pupils, authority to make statements concerning........................207-209 character of pupils, statements concerning, not amounting to slander............................. 209 character of, necessity of superintendent of schools having good reasons for statements concerning................ 206 character of, rules of libel and slander as to superintendent's comments on..........204-207 confidential relation to pupils 196 corporal punishment causes for legally inflicting............................... 218 legal authority to inflict 214-235 limitations upon use of.... 217 non-liability for inflicting moderate......................... 221 county superintendent, effect of malice in reporting on character of teacher............ 206 county superintendent's privilege in reporting upon character of............................ 205 PAGE criticisms of other instructors, liability for................ 209 cruelty, incompetency, neglect; charges of, as actionable slander................. 186 death of pupil, criminal liability for causing...................... 221 defilation of female pupils, liability for..................... 197 detention of pupils............201-202 dismissal and ejection, liability of school officers individually for.......................177-182 dismissal of...........5.............55-177 dismissal of, causes for......179-180 dismissal of, effect of malice and bad faith in.............. 179 dismissed, liability of teachers who remain in school house........................... 204 ejection of forcibly, liability of school officers for......... 182 good motives in corporal punishment, effect of upon liability................................ 229 government of pupils away from school...................... 210 immorality, false charges of, as actionable slander...... 185 immorality with pupils.......... 197 incompetency, false charge of, as actionable slander.......... 185 judgment, non-liability for errors in........-................. 201 legal status and authority of 194 liability for permitting torts of school officers............. 200 liability of school officers for not permitting performance of....... 180 libel and slander, comments on the character of board members......................... 209 libel and slander of, in general.-........-............. — - 185-191 liability for defamation of pupil's character.......... 207 libel of, non-liability of school district for..................... 110 loco parentis, as teacher's legal position..... —............ 194 malice, effect of, in presence of lawful rules and regulations............................... 211 malice and bad faith, effect on liability for detention of pupils........................... 202 malice and bad faith, effect on liability for punishment of pupils......................... 200 ministerial duties of......... 210 monetary loss to school corporation, liability for causing......................... 209 negligence of, non-liability of school district for................ 103 284 Index PAGE non-liability of school district to teacher contracting disease in school building.... 117 parent's power of selection of child's studies.196 permanent injury of pupils, liability for inflicting 220 punishment of pupils, authority as to.194 public discussion on character of................... 205 public discussion, privilege of school officers of commenting upon teacher's character in................... 190 refusal to instruct a pupil, non-liability for. --- —------------- 203 register, liability for failure to keep................... 209 required subjects, liability for exclusion of pupils who refuse to study..................... 199 right to punish corporally..214-217 rules and regulations, authority to make................... 194 rules and regulations, liability for suspension of pupils for violations of unreasonable................... 197-198 school officers' communications to superiors on charges against, as libel and slander 189 school officers' individual liability for unlawful dismissal and ejection of teachers................... 177-182 school officers' liability for illegally paying................... 155 school officers' liability in relation to, in general............ 164-191 shop keepers, liability to, for diverting trade................... 210 slander of, statements not amounting to................... 206 slanderous and libelous charges against..................... 184 social position of teachers. --- — 197 status under contract................ 177 suspension and expulsion of pupils, liability unlawful 197-201 uncertified, dismissal of.......... 181 uncertified, liability of school treasurer for paying............ 157 wantonness in corporal punishment, prohibition of. --- —-- 217 whipping, liability of school officers for permitting excessive. --- —------------- 176 Teachers and school administrators, legal authority of, as shown by general rules of tort liability....................................... 193-212 Teachers' contracts, necessity of license.5- 63 Territorial division and apportionment of school districts as PAGE illustrative of legislative control.................. 32-36 Texas, constitution of on education 24 Threats...................................... 73 Tort liability. See: Torts; School corporations; School districts; School officers; Teachers. administrative officers, of, in general..... 150 executive officers, of..... 160 judicial officers, of..... 150 legislative officers, of..... 150 malice, effect of upon lawful rules and regulations............ 211 school officers, of for torts of school corporation................ 152 Tort liability in public schools, comments on and criticisms of 237-242 Tort liability of school corporations.................... 113-147 Tort liability of school officers in relation to pupils and teachers 164-191 Tort liability of school officers in relation to school board.......... 149-163 Tort liability of school districts. California statutes creating 133-138 California, unique position of, in. --- —---------- 138 contractors' bonds, liability for injuries caused by neglect to take.................. 146 criticism of law of................ 237-240 liability of Michigan school districts for injuries caused by maintenance of nuisance 145 New York rule, development of................ 139-143 New York rule, statement of 138-145 New York, unique position held in.................. 144 Oregon statute on. --- —---------- 117-124 statutes imposing................ 114-135 suggestions as to change in existing law on.............. 240 Washington statutes and their construction, on. --- —-------- 124-133 extent and recency of allowing recovery. --- —-------- 114 Torts. in general.................... 72-75 assault, definition of. --- —---------- 72 assumption of risk. --- —-------------- 73 attractive nuisance doctrine 102-103 battery, definition of. --- —-------- 72 contributory negligence............73, 102, 105, 131, 134, 136, 144 corporations, liability of.. 74 crimes as torts. --- —... 73 defamation, definition. --- —------ 72-73 definition of torts..... 72-76 Index 285 PAGE false imprisonment, definition of............................................. 72 fraud and deceit, definition of 73 governmental non-liability in 74 independent contractor doctrine................................. 103 invitees.................................... 141 libel and slander.....................72-73 licensees, liability of school districts for injuries to......97-98 municipal liability in................ 76 negligence.......................... 73 nuisance................................... 140 nuisances, liability of school districts for maintaining.... 145 privilege.......................... 73 proximate cause.................................73, 101, 105, 137, 167, 168 school corporations, commonlaw rule of non-liability of, in...................................87-111 self defense............................. 73 states, non-liability of.............. 74 threats................................... 73 trespass, definition.................. 72 trespassers...............1......05-143 United States, non-liability of 74 voluntary assumption of risk.. 102 Torts of school boards, municipal liability for............................ 71-85 Tradesmen, liability of school officers to, for injuring trade........ 161 Tradesmen, liability of teachers to, for diverting trade.................. 210 Transportation of pupils............... 56 incompetent drivers, non-liability of school district for negligence of..................... 106 liability of New York school districts for injuries in...... 141 non-liability of school districts in general........................105-107 Treasurer of school district. claims, duty to pay.................. 58 commissions to, illegality of.... 58 suit, right of, to bring to recover money......................... 58 Trespass, definition of.................. 72 Trespass, liability of dismissed teachers for, who remain in school house............................. 204 Trespasser, non-liability of school district for injuries to....101, 105, 143 Truant officer, non-liability of school district for tort of........108-109 Truants, non-liability of school district for injuries to................. 101 Unfitness to perform office, false charges of, as slander................ 183 Uniforms, power of school to require............................... 63 United States, non-liability of, in tort............................. 74 University president's privilege of commenting on a student's character.................................. 208 PAGE Unreasonable corporal punishment, determination of...................... 225 Vaccination, liability of superintendent or teacher for illegal exclusion of pupil who refuses.. 199 Vaccination, power of school board to require........................... 62 Variations in the general rule of non-liability of school corporations in tort...................... 113-147 Vermont, corporal punishment, statutory authority to inflict in.. 216 Voluntary assumption of risk........ 102 Walls, city non-liability to pupils injured by falling from................ 80 Ward trustees, non-liability of city board of education for acts of.... 101 Washington. application of 1917 limited tort liability statute to cases already in, the courts.......... 127-129 athletics, liability of school districts for injuries to pupils in............................... 131 bus drivers, liability of school districts for negligence of.. 132 electric wire on school grounds, liability of school district for injuries caused by.......... 130 football, liability of school districts for injuries to pupils participating in............ 132 gymnasium apparatus, liability of school districts for injuries from, under old statute................................... 126 history of the tort liability statute.......................... 124-127 hot water, liability of school district for injury to pupil by...................................... 125 importance of early statute on tort liability of school districts............................... 125 limiting statute of 1917, construction and application of 129-133 limiting tort liability statute of 1917....................... 126-127 manual training equipment, application of 1917 limiting statute to injury from.......... 129 number of cases arising under statute allowing recovery in tort from school districts 126-129 playground apparatus, liability of school districts under old statute...-............... 128-129 statutes on tort liability of school districts.............. 124-133 water tank on school grounds, construction of 1917 limiting statute in relation to.... 130 Warrants, liability of school treasurer for paying improperly drawn 177 Water, city non-liability for damage by............................................. 82 286 Index PAGE Water tank on school grounds, liability of school district of Washington for injury to pupil caused by..-.......... -............... 130 Water pressure tank, non-liability of Oregon school district for injury by explosion of.............. 123 Welding, liability of California school districts for injuries caused by..................................... 137 Well-drilling machine, non-liability of school district for injuries to pupil by........-......-............. - 102 West Virginia, non-liability of school districts of, in tort............ 104 PAGE Wire, liability of school district for fatal injury to pupil by tripping over............................ 100 Wisconsin, corporate character of school districts of.-................ 13 Wisconsin, non-liability of school districts of, for a manual training injury................................... 104 Work of the school corporation...47-69 Workmen, individual non-liability of school officers for torts of...... 154 Wyoming, constitution of, on education.......................................... 25 '~1 r