Southern Branch 
 of the 
 
 University of California 
 
 Los Angeles 
 
 Form L 1 
 
 LB 
 
 Educ 
 Library 
 
 1391
 
 STATE NORMAL SCHOOL, 
 
 Los Angeles, Cai.
 
 A TREATISE 
 
 I'/ 70 
 
 LAW OF PUBLIC SCHOOLS 
 
 BY FINLEY BU.UKE 
 
 COUNSELLOR AT LAW 
 COUNCIL BLUFFS, IOWA 
 
 NEW YORK 
 
 A. S. BARNES <fe CO., Ill AND 113 WILLIAM STREET 
 
 (CORNER OP JOHN STREET) 
 
 1880
 
 Entered, according to Act of Congress, in the year 1880, 
 
 by FINLEY BURKE, 
 in the Office of the Librarian of Congress at Washington.
 
 Education 
 Library 
 
 PEE FAG E 
 
 ALMOST, every court in the land has to do with 
 questions growing out of our public-school system. 
 Our educational interests are becoming of greater 
 magnitude and importance each year. 
 
 Questions respecting school taxation, contracts, 
 employment of teachers, authority of teachers, 
 rules and regulations, rights of pupils, powers of 
 officers, liabilities of teachers and directors, use of 
 school property, etc., arise constantly. 
 
 Normal schools, teachers, and school officers 
 who are annually called upon to assume duties 
 ^ new to them have all felt the need of a work 
 \X which should embody in small compass what may 
 t be called the common law of public schools, and 
 ^ which would be a companion book to the statu- 
 tory school laws as published in the several States 
 by State authority. 
 
 The statutory school law is easy of access, but 
 the judicial decisions are scattered through a large 
 number of reports, and are out of the reach of 
 teachers and officers.
 
 4 PREFACE. 
 
 It has been the object of the writer to make a 
 book useful to the busy law practitioner and also 
 to teachers and officers. 
 
 An acquaintance with the law of this subject 
 would tend in no small degree to avert much 
 unseemly litigation, which in the infancy of our 
 public-school system was caused more by the un- 
 settled state of the law than by a fondness for 
 contention. 
 
 Teachers, especially, are often called upon to act 
 with vigor and promptness in matters requiring 
 not only tact and judgment, but also a knowl- 
 edge of what has actually been decided by the 
 courts of law, and this knowledge is often de- 
 manded when there is neither time nor oppor- 
 tunity to take professional advice. 
 
 The writer has limited himself to the treatment 
 of what has actually been decided, and what is 
 believed to be the law. 
 
 If any are disappointed in not finding men- 
 tioned in these pages subjects and cases which 
 have been ably discussed in teachers' meetings, 
 institutes, and conventions, and by State Super- 
 intendents, the writer has only this to say to 
 them, that such discussions, though valuable ami 
 interesting, are outside of the design of this 
 book, and he has purposely avoided them in order 
 to present this as a distinct work on the actual
 
 PREFACE. 5 
 
 law of the subject, based upon decisions of courts 
 which are precedents in those and other legal 
 tribunals. 
 
 It often becomes important to teachers and offi- 
 cers to know how their interests would fare if an 
 action should be instituted in a court of law. 
 
 The questions treated of are of a general char- 
 acter, and are as likely to arise in one State as 
 in another. Those that are of a purely local 
 character have been avoided as far as possible. 
 
 J'ULY, 1880.
 
 CONTENTS. 
 
 CHAPTER I. 
 
 PAGE 
 
 TAXATION FOR PUBLIC SCHOOLS 9 
 
 1. BRIEF HISTORY OF THE SUBJECT 9 
 
 2. THE POWER TO TAX FOR SCHOOL PURPOSES, .... 14 
 
 CHAPTER II. 
 
 EXEMPTION FROM TAXATION OF PROPERTY USED FOR 
 
 EDUCATIONAL PURPOSES, ....... 23 
 
 1. RULES OF CONSTRUCTION, 23 
 
 2. WHETHER PROPERTY MUST BE ACTUALLY USED FOR EDUCA- 
 
 TIONAL PURPOSES, 25 
 
 3. RESIDENCES OF PROFESSORS, ETC., 27 
 
 4. PROPERTY OF PRIVATE SCHOOLS AND OF PRIVATE PERSONS, 29 
 
 CHAPTER III. 
 CONDEMNATION OF SITES FOR SCHOOL-HOUSES, ... S3 
 
 CHAPTER IV. 
 
 ELECTIONS 34 
 
 1. TIME AND PI-ACE, 35 
 
 2. CONDUCT OF THE ELECTION, AND IRREGULARITIES THEREIN, 36 
 
 3. SUFFICIENCY OF THE ELECTION, 37 
 
 4. IMPERFECT BALLOTS 38 
 
 CHAPTER V. 
 
 SCHOOL OFFICERS 41 
 
 1. UNITED STATES COMMISSIONER OF EDUCATION, ... 41 
 
 2. STATE SUPERINTENDENT OF PUBLIC INSTRUCTION, . . 43 
 
 3. COUNTY SUPERINTENDENT, 44
 
 Mil CONTENTS. 
 
 SCHOOL OFFICERS-Continned. PAGE 
 
 4. DIRECTOHS, Ti:r-TKK-. ETC., 17 
 
 A. Their Power* and Dutltt, \- 
 
 B. Their Contract*, . r>I 
 
 C. Their lAaWity far Negligence 
 
 5. TREASURER, 
 
 6. VACANCIES BY OPERATION or LAW, 66 
 
 CHAPTER VI. 
 
 USE OF SCHOOL PROPERTY 58 
 
 CHAPTER VII. 
 
 SCHOOL DISTRICT MEETINGS, 68 
 
 CHAPTER VIII. 
 
 EMPLOYMENT OF SCHOOL TEACHERS 66 
 
 1. PARTIES TO THE CONTRACT 66 
 
 2. A CERTIFICATE PREREQUISITE, 70 
 
 8. CHARACTER OF TUB CONTRACT, 71 
 
 4. CONDITIONS OF TUB CONTRACT, 75 
 
 5. BREACH OF THE CONTRACT. 81 
 
 6. REMEDIES, gg 
 
 7. DEFENCES, 85 
 
 CHAPTER IX. 
 
 SCHOOL REGULATIONS, 89 
 
 1. BY WHOM MADE, 89 
 
 2. BY WHOM ENFORCED 90 
 
 UKI. ii. ATKINS AS TO ADMISSION, 91 
 
 4. I{i:<a:i.ATK>NM A* TO ATTENDANCE, 94 
 
 .1. ItKliri.ATIONH AS TO THE 1'sK OF TUB BlBI.K, ETC., . . 102 
 
 6. KKIiCI.ATIONM AS TO >TI nil - Ill 
 
 7. REOt'I.ATIONH AH TO CONDUCT, ETC., Ill 
 
 8. (iENEKAL I'KINC Il'I.E, 115 
 
 CHAPTER X. 
 
 CORPORAL PUNISHMENT, ... 119
 
 LAW OF PUBLIC SCHOOLS. 
 
 CHAPTER I. 
 TAXATION FOR PUBLIC SCHOOLS. 
 
 1. BRIEF HISTORY OF THE SUBJECT. 2. THE POWER 
 TO TAX FOR SCHOOL PURPOSES. 
 
 1. BRIEF HISTORY OF THE SUBJECT. 
 
 THE thought that man as man, without ref- 
 erence to any special practical end, should be ed- 
 ucated seems to have occurred first to the Greeks, 
 but it was not until the Reformation that men 
 began to hold the opinion that every man's in- 
 tellect should be so trained as to be able to read 
 and inquire and think for itself. 
 
 During what are called the dark centuries a 
 state of deplorable ignorance prevailed all over 
 Europe. It is refreshing to find in the history 
 of this dark middle age two monarchs who strove 
 to give to their subjects the inestimable privilege of
 
 10 LAW OF PUBLIC SCHOOLS. 
 
 lifting themselves out of the depths of ignorance 
 in which they were immersed. At the accession 
 of Charlemagne to the throne of France no means 
 of education existed in his dominions. This mon- 
 arch, who, it is said, was himself incapable of 
 writing, invited men of letters from abroad to 
 come and reside at his court and instruct him- 
 self and his family. He also established schools 
 in various cities of his empire. 1 
 
 In the ninth century Alfred the Great, of Eng- 
 land, made similar efforts, but they died with him, 
 his successors being too much occupied with warfare 
 to continue the educational work thus initiated. - 
 
 Down to the time of the transitional movement 
 in Europe from the mediaeval ages to the modern 
 world, there is little of interest to the cause of 
 popular education to record. 
 
 The influence of the Reformation upon educa- 
 tion was made manifest early in the seventeenth 
 century. In 1616 the Scotch Parliament, adopts! 
 measures for settling and supporting a public 
 school in each parish at (he expense of the her- 
 itors or landed proprietors. This legislation wa-; 
 repealed at the restoration of Charles II., but was 
 re-enacted by the Scottish Parliament in 1696. 3 
 
 I Hallam's " Middle ALT< <." (Imp ix , parts 1 and 2. 
 
 II Hume's " Hislnry of Knglaud," vol. i. chap. ii. 
 II. Kent's Cumm ,
 
 STATE NORMAL SCHOOL, 
 
 Los Angeles, Cat. 
 TAXATION FOR PUBLIC SCHOOLS. 11 
 
 Lord Macaulay says : " By this memorable law it 
 was, in the Scotch phrase, statuted and oraained 
 that every parish in the realm should provide a 
 commodious school-house and should pay a mod- 
 erate stipend to a schoolmaster. The effect could 
 not be immediately felt. But, before one genera- 
 tion had passed away, it began to be evident that 
 the common people of Scotland were superior in 
 intelligence to the common people of any other 
 country in Europe. To whatever land the Scotch- 
 man might wander, to whatever calling he might 
 betake himself, in America or in India, in trade 
 or in war, the advantage which he derived from 
 his early training raised him above his competitors. 
 If he was taken into a warehouse as a porter, he 
 soon became foreman. If he enlisted in the army 
 he soon became a sergeant. Scotland, meanwhile, 
 in spite of the barrenness of her soil and the se- 
 verity of her climate, made such progress in agri- 
 culture, in manufactures, in commerce, in letters, 
 in science, in all that constitutes civilization, as 
 the Old World has never seen equalled, and as even 
 the .New World has scarcely seen surpassed. 
 
 This wonderful change is to be attributed, not 
 indeed solely, but principally, to the national sys- 
 tem of education." ' 
 
 1 Macaulay 's " History of England," vol. v. chap. xxii.
 
 12 LAW OF PUBLIC SCHOOLS. 
 
 Since then every great power of the civilized 
 world has adopted some system of public schools. ' 
 
 What little objection has been made to taxation 
 for universal education, in this country, has come 
 from Wealth, which says it cannot properly be 
 taxed for the education of the people. We must 
 not forget that without law the ownership of that 
 wealth could not exist 
 
 Jeremy Bentham says : " The idea of property 
 consists in an established expectation, in the per- 
 suasion of being able to draw such or such an 
 advantage from the thing possessed, according to 
 the nature of the case. Now this expectation, 
 this persuasion can only be the work of the law. 
 I cannot count upon the enjoyment of that which 
 I regard as mine, except through the promise of 
 the law which guarantees it to me. Property and 
 l;i\v are born together, and die together. Before 
 laws were made there was no property ; take 
 away laws and property ceases." 9 
 
 The words, " I cannot count upon the enjoy- 
 ment of that which I regard as mine, except 
 through the promise of the law which guarantees it 
 
 1 In Turkey, whose influence as a nation is declining, public 
 instruction has ceased. Her school-houses have ln-cn al>;m- 
 doned and are in ruins. Rupt. of U. 8. Com. of Education, 
 1876-7, p. 193 
 
 * " Principles of the Civil Code, "chap. viii. " Of Property."
 
 TAXATION FOR PUBLIC SCHOOLS. 13 
 
 to me," come home with significant meaning in this 
 day of Socialism and of clashing between Capital 
 and Labor, which now so often occurs in the mon- 
 archies of the Old World, and even in our own 
 land. The law guarantees the right of property, 
 but instantaneous with the creation of the right 
 of property must exist the paramount claim of 
 the government to such portion of it as may be 
 necessary fully to effectuate that guaranty. The 
 law must be upheld and respected, or else all 
 rights of ownership are in jeopardy and industry 
 paralyzed. 
 
 To maintain the law, education of the people 
 is more potent than standing armies. 
 
 Lord Brougham, in the House of Commons, 
 said : " There have been periods when the coun- 
 try heard with dismay that the soldier was abroad. 
 That is not the case now. Let the soldier be 
 abroad : in the present age he can do nothing. 
 There is another person abroad a less important 
 person in the eyes of some, an insignificant per- 
 son, whose labors have tended to produce this 
 state of things. The schoolmaster is abroad ! 
 And I trust more to him, armed with his primer, 
 than I do the soldier in full military array, for 
 upholding and extending the liberties of his 
 country." 1 
 
 1 Speech, January 29, 1828.
 
 14: LAW OF PUBLIC RCHOOTA 
 
 "If is intelligence," said Daniel Webster, 
 " whioh. has reared the majestic columns of our 
 natioi.al glory, and this alone can prevent them 
 from crumbling into ashes." 
 
 Staie education, being so important to national 
 existence, is therefore a very appropriate object of 
 taxation. 
 
 2. POWER TO TAX FOR SCHOOL PURPOSES. 
 
 The State is the source of authority. " Every 
 municipal corporation and every political division 
 of the State must be able to show due authority 
 from the State to make the demand." 1 
 
 The taxing power can be lawfully exercised only 
 in behalf of a public purpose. 
 
 Boards of school directors are civil corporations, 
 and the Legislature may confer upon them the 
 power to tax for school purposes. 2 
 
 The words " public schools" are synonymous 
 with "common schools," and mean the schools 
 created by law and maintained at the public ex- 
 pense, and which are open and common to the 
 children of all the inhabitants alike.' 
 
 Taxation for public schools id for a public use 
 
 1 " C'onlcy on Taxation," p. 474. 
 
 * Stele t>. HrriiK.inl. :;s Texas, llfi. 
 
 * Jeiikius v. Amlovc:-, !'):j Mass., 94-08; Poeplf r. J'.oard of
 
 TAXATION FOR PUBLIC SCHOOLS. 15 
 
 and purpose, and public education is a fit and ap- 
 propriate object of taxation. ' 
 
 Such taxes may be constitutionally imposed, and 
 one receiving his full share of benefits from the 
 school system cannot complain that the legislative 
 power is in that respect unwarranted. 2 
 
 There can be no taxation in aid of a private edu- 
 cational institution operated for individual profit. 3 
 
 That a school building -was larger than was 
 immediately needed, and that the vote specified 
 among other uses of a part of the building that of 
 holding school society meetings and lectures there- 
 in, does not vitiate the tax, nor authorize a court 
 to enjoin the same. 4 
 
 A vote by a school district to raise a given sum 
 to remove and repair a school-house is within the 
 
 Education, 13 Barb. (N. Y.), 400 ; Webster's Dictionary, Com- 
 mon common scltools, and Abbott's Law Dictionary, title 
 " Common Schools." 
 
 1 Opinion of the Judges, 68 Mi.-., 582 ; Williams v. School 
 District, 33 Vt., 271. 
 
 s Marshall v. Donovan, 10 Bush. (Ky.), G81 ; 6 Cowen 
 (N. Y.), 543 ; 56 Pa. St., 359 ; 22 Grattau (Va.), 857. 
 
 3 Curtis' Adm'r's v. Whipple, 24 Wise., 350 ; Philadelphia 
 Association, etc., v. Wood, 39 Pa. St., 73. 
 
 4 Sheldon v. Centre School District, 25 Conn., 224 ; Green- 
 bauks v. Bout well, 43 Vt., 207.
 
 16 LAW OF PUBLIC SCHOOLS. 
 
 authority granted by statute to raise money " for 
 erecting and repairing school-houses." 1 
 
 Where the law provides, as it does in some 
 of the States, that the electors of a school dis- 
 trict, at an annual meeting, must vote a precise 
 and definite sum as a tax on the inhabitants of 
 the district for building a school-house, they can- 
 not delegate to the officers of the district any 
 discretion as to the aggregate amount of tax to 
 be raised. s 
 
 In Michigan the policy of the law of that 
 State upon the subject of education, from its or- 
 pin ization until after the adoption of the present 
 constitution, was reviewed by the Supreme Court 
 of that State, and the court came to the conclu- 
 sion that there is nothing in the constitution or 
 laws of that State restricting its school districts 
 in the branches of knowledge which their officers 
 may cause to be taught, or the grade of instruc- 
 tion that may be given, if the voters of the dis- 
 trict consent to bear the expense, nor is there 
 anything to prevent instruction in the classics and 
 modern languages in these schools. * 
 
 In the same case, the question of whether there 
 
 1 Bump r. Smith, 11 X. II., 48. 
 
 * Robinson t. Dodge, 18 Johnson, 351 ; Trumbull . White, 
 
 r, Hill, x;. 
 
 ;;irt r. School District, etc., :;o Midi., <!.
 
 TAXATION FOR PUBLIC SCHOOLS. 17 
 
 exists any authority to make high schools free by 
 taxation, levied on the people at large, was fairly 
 and fully raised, and the argument urged that, 
 while there may be no constitutional provision ex- 
 pressly prohibiting such taxation, the general course 
 of legislation in the State and the general un- 
 derstanding of the people have been such as to 
 require the courts to regard instruction in the 
 classics and in living modern languages, in these 
 "high schools," as in the nature, not of prac- 
 tical and therefore necessary instruction for the 
 people at large, but rather as accomplishments 
 for the few, to be sought after in the main by 
 those most able to pay for them, and to be paid 
 for by those who seek them, and not by general 
 tax, and that therefore the courts ought to de- 
 clare such taxation incompetent. After hearing 
 full argument, the court decided that such taxation 
 was proper and lawful. l In considering the appli- 
 cability of the decision above referred to, it must 
 be borne in mind that there is nothing in the 
 State Constitution, or in the history of education 
 in Michigan, different, so far as the principle 
 therein settled is regarded, from the constitutional 
 provisions and educational histories of many of the 
 other States of the Union. a 
 
 1 Stuart v. School District, etc., 30 Mich., 69. 
 
 2 A very convenient compilation of the history of public
 
 18 LAW OF PUBLIC SCHOOLS. 
 
 There are many other decisions in which the 
 power to vote and grant money by taxation for 
 the support of grammar schools, high schools, and 
 normal schools, has been liberally construed by 
 the courts in aid of such institutions. ' Indeed it 
 seems practically to have been adopted as a rule 
 by the courts that the law shall be liberally con- 
 strued in aid of such objects. 
 
 In an early Massachusetts case it was decided 
 that money raised for the support of a female higli 
 school, for the purpose of teaching bookkeeping, 
 algebra, geometry, history, rhetoric, mental, moral, 
 and natural philosophy, botany, the Latin and 
 Frenc.i languages, and other higher branches, was 
 lawfully raised by taxation.* 
 
 As early as 1636 provision was made in Massa- 
 chusetts for a public school, which two years later, 
 
 
 
 education in the various States is contained in the Report of the 
 U. 8. Commissioner of Education for 1876-7. 
 
 1 Richards*. Raymond, Sup. Court of 111., Nov. 10. 1870, 
 Chicago Legal News, vol. xii., No. 11, Whole No. 580 ; Merrick 
 and others, >\ Inhabitants of Amherst and others, 12 Allen, 500 ; 
 Cushing . Inhabitants of Newburyport, 10 Motoalf (Mass.), 
 508 ; Briggs et al. t. Johnson County, Mo., 4 Dillon C. ('. II., 
 148; Commonwealth v. Dedham, 16 Mass., 141; Common 
 wealth . Sheffield, 11 Cush. (Mass.), 178 ; and see Jenkins v. 
 Andover, 103 Mass., 94. 
 
 1 Gushing v. Inhabitants of Newburyport, 10 Metcalf (Mass.), 
 EKJ6,
 
 TAXATION FOR PUBLIC SCHOOLS. 10 
 
 receiving a bequest from John Harvard, was called 
 HARVARD COLLEGE.' 
 
 " To the end that learning may not be buried 
 in the graves of our forefathers," in 1647 it was 
 ordered in all the Puritan colonies " that every 
 township, after the Lord hath increased them to 
 the number of fifty householders, shall appoint one 
 to teach all children to read and write ; and 
 where any town shall increase to the number of 
 one hundred families, they shall set up a gram- 
 mar school ; the masters thereof being able to in- 
 struct the youth so far as they may be fitted for 
 the university."* 
 
 The great historian of the United States says : 
 " In these measures, especially in the laws estab- 
 lishing common schools, lies the secret of the 
 success and character of New England. Every 
 child, as it was born into the world, was lifted 
 from the earth by the genius of the country, and 
 in the statutes of the land received as its birth- 
 right, a pledge of the public care for its morals 
 and its mind." 
 
 In 1817 the town of Dedham was indicted for 
 failure to maintain a public high school. 3 
 
 1 Bancroft's " History of the United States," vol. i. chap. x. 
 Id. 
 
 3 Commonwealth v. Dedham, 16 Mass., 141. See also Com. 
 v. Sheffield, 11 Gushing (Mass.), 178.
 
 20 LAW OF PUBLIC SCHOOLS. 
 
 Higli schools thus originated almost with the 
 settling of the colonies, and are now maintained 
 in the various States and Territories, and no ques- 
 tion has been made as to the power to tax for 
 their support, except in the cases previously cited, 
 in which that power was upheld. 
 
 It may be said that in the case of Kuleson r. 
 Post, the Supreme Court of Illinois held the con- 
 trary so far as that State is concerned, but an 
 examination of that case will disclose that the 
 writer of the opinion was not called upon to 
 decide the question, and it cannot be considered 
 as more than the private view of the writer of 
 the opinion. 1 It should be said, to the credit of 
 that State, that it is one of the foremost in sec- 
 ondary education, and its many high schools are 
 cheerfully supported by taxation. 
 
 A power that is thus coeval with our govern- 
 ment, which originated with it, and has been con- 
 stantly exercised ever since, cannot now be doubted. 
 
 Most undoubtedly, the legislature of a State has 
 power to tax for the support of public high schools, 
 and this power may be delegated to school districts 
 as civil corporations. 
 
 In the course of an opinion recently delivered in 
 the Federal Circuit Court for the Eighth Circuit, it 
 
 1 Ruleson t>. Post, 79 Illinois, fiii7.
 
 TAXATION FOR PUBLIC SCHOOLS. 21 
 
 was said by the court : " It has long been a recog- 
 nized fact that the order and well-being of any 
 community largely depended upon its moral 
 and intellectual culture ; and nearly all nations 
 making any pretensions to civilization have in 
 some way or other recognized this. The encour- 
 agement usually was in keeping with the prevail- 
 ing form of government and social organization. 
 As these became modified, so as to distribute bur- 
 dens and benefits more equally, educational interest 
 came in for a share of its favors. Not, however, 
 until intelligence had demonstrated its physical 
 power, beyond cavil and dispute, did education 
 obtain the universal recognition it deserves. 
 
 Organizing armies and schools, improving im- 
 plements of war and the school-master, became 
 equally of national concern. 
 
 At the birth of our government education had 
 not obtained national recognition ; for beyond ' the 
 promotion of science and arts by securing for 
 limited times to authors and inventors the ex- 
 clusive right to their respective writings and dis- 
 coveries,' no attempt is made in the Constitution 
 of the United States to draw education within 
 national cognizance thus indirectly delegating it 
 to the States. 
 
 In them it found more or less favor, until to-
 
 22 LAW OF PUBLIC SCHOOLS. 
 
 day there is not a State in the Union which 
 fails to recognize its importance." 1 
 
 In the same case it was held that the fact that 
 free schools and a State university are expressly 
 mentioned in a State constitution, and normal 
 schools are not, does not amount to a constitu- 
 tional prohibition against the establishment of the 
 latter. 8 
 
 1 Briggs et al. t. Johnson County, etc., 4 Dill, C.C.R., 143. 
 
 Id.
 
 STATE NORMAL SCHOOL, 
 
 Los Angeles, CaL 
 EXEMPTION FROM TAXATION. 23 
 
 CHAPTER II. 
 
 EXEMPTION FROM TAXATION OF PROP- 
 ERTY USED FOR EDUCATIONAL 
 PURPOSES. 
 
 1. RULES OF CONSTRUCTION. 2. WHETHER PROP- 
 ERTY MUST BE ACTUALLY USED FOR EDUCATIONAL 
 
 PURPOSES. 3. RESIDENCES OF PROFESSORS, ETC. 
 4. PROPERTY OF PRIVATE SCHOOLS AND OF PRI- 
 VATE PERSONS. 
 
 1. RULES OF CONSTRUCTION. 
 
 THE property belonging to the State or other 
 civil divisions, employed for the purpose of public 
 education, is, like all other public property, exempt 
 from taxation. And property devoted to educa- 
 tional purposes, generally, is expressly exempted 
 from taxation by legislative enactment in the vari- 
 ous States. 
 
 The statutes of some of the States are, however, 
 much more liberal than those of others, and ques- 
 tions frequently arise as to the extent of the ex- 
 emption and the construction to be given thereto. 
 
 It is said that ' ' taxation is the rule and exemp-
 
 24 LAW OF PUBLIC SCHOOLS. 
 
 tion the exception, and that statutes providing for 
 exemption should be strictly construed, so that no 
 property shall be exempt excepting that which is 
 clearly and fairly within the express terms of the 
 law." 1 
 
 The right of exemption cannot be implied, but 
 must be given in language which will not admit 
 of doubt. 
 
 Exemptions are so repugnant to the law that 
 they will be construed with strictness. 1 
 
 Statutory exemptions will be construed as a di- 
 
 1 Per Rothrock, J., in Trustees of Griswold Coll. r. The 
 State of Iowa, 46 Iowa, 275-278. 
 
 8 Trustees of Griswold Coll. t>. The State of Iowa, 46 Iowa, 
 278 ; Wash. University v. Rouse, 42 Mo., 308 ; Hannibal, etc., 
 . Shacklctt, 30 Mo., 550 ; Wyrnan *>. St. Louis, 17 Mo., 335 ; 
 Pacific R.R. Co. v. Cass. County, 53 Mo., 17 ; Indianapolis v. 
 McLean, 8 Ind., 328 ; Methodist Church v. Ellis, 38 Ind.. 3 ; 
 Hartt). Plum, 14 Cal., 351 ; Kendrick t. Farquhar, 8 Ohio, 
 189 ; Armstrong . Treasurer of Athens County, 10 Ohio, 23* ; 
 Cincinnati Coll. . The State, 19 Ohio, 110; Probasco . 
 Moundville, 11 W. Va., 501 ; Crawford . Burrel, 53 Pa. St., 
 219, 220 ; Platt t>. Rice, 10 Watts, 352 ; Armand v. Dumas, 28 
 La. Ann., 403 ; State v. Ross, 24 N. J. L. (4 Zabr). 497 ; State 
 v. Parker, 32 N. J., 426 ; Chegaray v. Mayor, etc., 13 N. Y. (3 
 Kern.), 220 ; Chegaray v. Jenkins, 3 Sandf., 409; People . 
 Roper, 35 N. Y., 629 ; Seymours. Hartford, 21 Conn., 481 ; 
 State v. Wilson, Peningt., 300; Bank of Republic . Hamil- 
 ton, 21 111., 53 ; Vail v. Beach, 10 Kan., 214 ; St. Mary's Coll. 
 e. Crowl, 10 Kan., 442 ; Miami . Brackeuridge, 12 Kan., 114.
 
 EXEMPTION FROM TAXATION. 25 
 
 rection not to assess, rather than as a contract 
 creating vested rights. 1 
 
 When an exemption is prescribed as part of 
 a charter granted by the State to a corporation, 
 such "exemption becomes part of the contract, and 
 is protected by the Constitution of the United 
 States. 2 This is well settled. 
 
 2. WHETHER PROPERTY MUST BE ACTUALLY USED 
 FOR EDUCATIONAL PURPOSES. 
 
 Whether, in order to be exempt, the property 
 must be actually used for educational purposes, de- 
 pends upon the wording of the particular statute 
 creating the exemption, but the judicial construc- 
 tions which have been put upon such statutes as 
 have been called in question are valuable aids in 
 discovering the meaning of analogous laws. 
 
 In order to be exempt from taxation it is gen- 
 erally necessary that the property be actually used 
 for educational purposes. 3 
 
 1 Probasco v. Moundville, 11 W.. Ya., 501. 
 
 4 The Delaware, 18 Wall., 225 ; " Black well on Tax Titles," 
 *407 ; " Cooley on Taxation," p. 55 ; Cooley's " Constitutional 
 Limitations," pp. 280,127. 
 
 3 Washburn v. Commissioners, 8 Kan., 344; Cincinnati 
 Coll. v. State, 19 Ohio, 110 ; State v. Elizabeth, 4 Dutch., 103 ; 
 Detroit, etc., t>, Mayor, 3 Mich., 172 ; State v. Ross, 4 Zabr., 
 497 ; Pace v. Jefferson County, 20 111. , 644 ; Nazareth v. Com- 
 ui'.mwoalth, 14 B. Moil. 266.
 
 26 LAW OF PUBLIC SCHOOLS. 
 
 But it was decided by the Supreme Court of the 
 United States that an exemption of all property 
 " necessary for school purposes" includes property 
 not in actual use by the school, but which is rented 
 and the income applied to the support of the 
 school. 1 
 
 And under a statute of Massachusetts exempting 
 from taxation ' ' the personal property of literary 
 and scientific institutions incorporated within the 
 Commonwealth, and the real estate belonging to 
 such institutions occupied by them or their offi- 
 cers for the purposes for which they were incor- 
 porated," it was held that a farm used for pasture 
 and tillage grounds, the products of which were 
 used for the support of a boarding-house for stu- 
 dents attending an academy, was exempt. 1 
 
 A certain building was at first intended for a 
 dwelling-house, but the plan was altered soon after 
 the foundation was laid, and the owner, under an 
 agreement with another, finished it for use as a 
 seminary, and it was so used, under a statute ex- 
 empting every building erected for the rise of a 
 college, etc.; it was held that this building was 
 exempt.' 
 
 1 The Northwestern University r. The People, Sup. Court 
 of U. B., reported iu Am. L. Reg., vol. xviii., No. 0, p. 360. 
 s "Wesleyan Academy v. VVilbraham, 99 Mass., 599. 
 1 Cbegaray v. Mayor, etc., 2 Duer (N.Y.), 521.
 
 EXEMPTION FROM TAXATION. 27 
 
 3. RESIDENCES OF PKOFESSORS, ETC. 
 
 It has sometimes been made a question whether 
 the residences of college officers and professors are 
 included in an exemption of property devoted to 
 educational purposes. 
 
 In New Jersey it is held that the exemption 
 clause in the Tax Act of that State of 1851, exempt- 
 ing "all colleges, academies, or seminaries of learn- 
 ing," extends to the houses and lots provided by 
 the College of New Jersey for the residences of its 
 president, professors, and steward, such residences 
 being in part pay for their official services. 1 
 
 Under the Iowa statute exempting from taxation 
 " all public libraries, grounds, and buildings of lit- 
 erary, scientific, benevolent, agricultural, and relig- 
 ious institutions and societies devoted solely to 
 the appropriate objects of these institutions, not 
 exceeding six hundred and forty acres, and not 
 leased or otherwise used with a view to pecuniary 
 profit,'* * it was held that all property, including the 
 residences of professors upon the grounds of litera- 
 ry institutions and the dwellings of clergymen 
 owned by religious societies and used exclusively 
 for such dwellings, without pecuniary profit to the 
 owners, is exempt from taxation, provided such 
 
 1 State v. Ross, 24 K J. L. (4 Zabr.), 497. 
 * Code of 1873, Sec. 797.
 
 28 LAW OF PUBLIC SCHOOLS. 
 
 property is proper and appropriate to effectuate the 
 objects of such institutions. 1 
 
 The president and fellows of Harvard College 
 built a dwelling-house on land of the corporation 
 within the college yard, and leased the same to 
 one of their professors, to be occupied by him as 
 a residence for himself and family at an annual 
 rent. Held, that this was not an occupation of 
 the real estate of the college by one of its offi- 
 cers, within the exemption from taxation provided 
 by Massachusetts Revised Statutes, Ch. 7, 5, cl. 2 ; 
 but it was expressly stated that this would be 
 otherwise if the building had been built for one of 
 the professors or officers of the college, and had 
 been occupied by him, with the permission of the 
 college, and without having any estate therein, or 
 paying any rent therefor.* 
 
 But in Ohio it was said the mere occupancy of 
 a house by a college professor is not an occupation 
 for literary purposes, within the meaning of cer- 
 tain acts of 1831 and 1834, although it is situated 
 on land of the college. Under said acts the build- 
 ing must be occupied for literary purposes. 1 
 
 1 Trustees of Griswold College v. The State of Iowa, 46 
 Iowa, 275. 
 
 * Pierce v. Cambridge, 2 Cushing (Mass.), 611. 
 
 1 Kendrick t>. Farquhar, 8 Ohio, 189. And see Vail v. 
 Beach. 10 Kan., 214 ; St. Peter's Church c. Board of Corn's, 
 VJ Minn.. 395.
 
 EXEMPTION FROM TAXATION. 29 
 
 4. PROPERTY OF PRIVATE SCHOOLS AND OF PRI- 
 VATE PERSONS. 
 
 These exemptions are not generally intended to 
 include private schools operated for individual 
 profit, nor property used for the support of such 
 private institutions. 1 
 
 A building used in part for school purposes and 
 in part for other purposes is not exempt, because 
 there can be no separate assessment for the part 
 not used for school purposes.* 
 
 A private boarding-school is not such a " school " 
 or " seminary of learning "as is exempt from tax- 
 ation by 1 New York Revised Statutes, 388, 4.* 
 
 A building owned by the College of New Jersey, 
 but used as a grammar school, at an annual rent, 
 'and which prepares students for the college, is not 
 such a part of the college as to be exempt from 
 taxation. 4 
 
 A grammar school kept by a person at his own 
 risk, on his own account, is not exempt under the 
 New Jersey Tax Act of 1851. * 
 
 1 State v. Ross, 4 Zabr., 497 ; Indianapolis v. McLean, 8 
 Ind., 328 ; Pace v. Jefferson County, 20 111., 644 ; Chegaray 
 v. Mayor, 13 N.Y. (3 Kern.), 220 ; Chegaray v. Jenkins, 3 
 Saudf., 409. 
 
 2 Wyman v. St. Louis, 17 Mo., 335. 
 
 3 Chegaray v. Mayor, etc., 13 N. Y. (3 Kern.), 220 ; Che- 
 garay v. Jenkins, 3 Sandf., 409. 
 
 4 State v. Ross, 24 N. J. L. (4 Zabr.), 497. B Id.
 
 30 LAW OP PUBLIC SCHOOLS. 
 
 And in Illinois it has been decided that to con- 
 stitute a school-house a "public school-house," and 
 to exempt it as such from taxation, it must bo 
 property under the immediate control of the school 
 district. ' 
 
 But in Indiana, under an act of 18G1, it was 
 held that buildings erected, kept, and appropriated 
 for the use of a literary and scientific institution, and 
 in which a corps of teachers has been engaged in 
 instructing pupils in ancient and modern languages, 
 in the various sciences, and in all branches usually 
 taught in colleges, are exempt, even though the in- 
 stitution is conducted on private account, and the 
 earnings go to the individual proprietor. 1 
 
 In Louisiana it is decided that a building is not 
 exempt because used for a school, unless its owner 
 keeps the school. 
 
 If its owner rents the building, and thus derives 
 an income from it, the building is taxable, not- 
 withstanding it is used for a school." 
 
 In Michigan, under a statute exempting from 
 taxation certain real estate belonging to library and 
 benevolent institutions, it was said that the words 
 
 1 Pace v. Jefferson County, 20 111. , 644. 
 
 ' Indianapolis t>. Sturtevnnt, 24 lud., 391. 
 
 1 Arniand v. Dumas, 28 La. Ann., 403 ; New Orleans t>. St. 
 Patrick's Hall Association, 28 La. Ann., 512 ; New Orleans v. 
 Lafayette Ins. Co., 28 La. Ann., 756.
 
 EXEMPTION FROM TAXATION. 81 
 
 " belonging to " do not necessarily imply owner- 
 ship, unless upon the most severe technical con- 
 struction, for property belongs to its possessor so 
 long as he has the exclusive right to its posses- 
 sion. 1 
 
 1 Sisters of Charity v. Detroit, 9 Mich., 94.
 
 32 LAW OF PUBLIC SCHOOLS. 
 
 CHAPTER III. 
 
 CONDEMNATION OF SITES FOR SCHOOL- 
 HOUSES. 
 
 THERE is usually a statutory provision for the 
 condemnation of property necessary for school pur- 
 poses, and where such is not the case the general 
 principles of the law of eminent domain would 
 warrant the condemnation of property for that 
 purpose. 1 Ground may be condemned for the erec- 
 tion of a school-house. 4 And for a school-yard. 
 Schools are a public necessity, and the exercise of 
 eminent domain is as justifiable as that of taxation 
 for the same purpose. 1 
 
 School districts, as quasi corporations empowered 
 by law to hold property for school purposes, have 
 the ability to acquire real property, necessary for 
 such purposes, by purchase. They may take by 
 gift, grant, or devise in the corporate name and 
 
 1 " Mills on Eminent Domain," See. 17 ; Peckham . School 
 District, 7 R.I.. 545 ; Appointment of Viewers, Wyoming 
 Com. Pleas, 4 Leg. Gazette, 410 ; Long . Fuller, 68 Pa,. 170. 
 
 * Townshp Board n. Ilackman, 48 Mo., 243. 
 
 * Williams v. School District, 33 Vt., 271.
 
 CONDEMNATION OF SITES FOR SCHOOL-HOUSES. 33 
 
 capacity. And where the owner is willing that 
 his property may be taken for school purposes 
 upon a fair valuation, ground for the erection of 
 school buildings may be acquired by agreement 
 with such owner, and a contract of that kind be 
 enforced as any other contract for the sale of real 
 property. It is well, however, to bear in mind 
 that, while this is true of the corporation, yet this 
 gives the officers of such school corporation no 
 right or power to make such contract without the 
 direction of the corporation, for this might lead 
 to great abuses. 
 
 School districts are quasi corporations of very 
 limited powers, and act through the medium of 
 officers, or agents whose powers and duties are con- 
 fined to special purposes, and no inference can be 
 drawn from the general nature of their powers. 1 
 
 Where property is acquired by deed, great care 
 should be exercised that the grantee be named by 
 the proper corporate name. 
 
 A grant to "the people of" a county, or to 
 " the inhabitants of the C. and L. Union School 
 District," there being no corporation of that name, 
 is void, or if it has any effect, must vest the title 
 in the individual inhabitants. 2 
 
 1 Harris v. School District, 8 Foster (N.H.), 58. 
 * Foster v. Lane, 30 N.H. (10 Post.), 305 ; Jackson v. Cory, 
 8 Johns., 385 ; Hornbeck v. Westbrook, 9 Johns., 73.
 
 3-t LAW OF PUBLIC SCHOOLS. 
 
 CHAPTER IV. 
 
 ELECTIONS. 
 
 1. TIME AND PLACE. 2. CONDUCT OP THE ELEC- 
 TION AND IRREGULARITIES THEREIN. 3. SUFFI- 
 CIENCY OF THE ELECTION. 4. IMPERFECT BALLOTS. 
 
 IT is by means of elections that the will of the 
 electors, in the choice of officers to manage the 
 affairs of the district, is expressed. 
 
 These elections are governed by constitutional 
 and statutory enactments. The numerous litigated 
 cases respecting elections have given rise to a com- 
 mon law upon the subject, part of which is bor- 
 rowed from the common law of England. The 
 succeed ing pages of this chapter are designed to 
 point out, very briefly, the general principles gov- 
 erning such questions as are most likely to arise 
 upon school elections. 1 
 
 1 The general subject has been treated of very fully and ably 
 l>y Hon. Geo. W. McCrary, now U. S. Circuit Judge of Eighth 
 Circuit, in his recent' work on the " American Law of Elec- 
 tions," and incidentally, but thoroughly, by Judge Cooley in
 
 ELECTIONS. 35 
 
 1. TIME AND PLACE. 
 
 Time and place are of the substance of every elec- 
 tion, and -the election- must be held at the time 
 and place established by law. 1 
 
 Where a notice of an election for a school dis- 
 trict specifies several purposes in such a way as 
 that no doubt is left as to its meaning, it will be 
 sufficient, although there may be an omission in it 
 of a copulative conjunction. 1 
 
 Where a statute requires polls to be kept open 
 from nine o'clock A.M. to four o'clock P.M., an 
 election called for one o'clock P.M. is void.* 
 
 A meeting of the electors of a sub-district for 
 choice of a sub-director convened at twenty 
 minutes before four o'clock and adjourned at ten 
 minutes past four ; shortly afterward, and while 
 the president and secretary were still in their 
 places, and all who composed the meeting were 
 present, two qualified electors came in and ten- 
 dered their votes. Held, that they should have 
 been received and counted. 4 
 
 his work on "Constitutional Limitations," to both of which 
 the reader is referred for a complete treatment of the entire 
 law of elections. 
 
 1 Dickey v. Hurlburt, 5 Gal., 343. 
 
 8 Merritt v. Farris, 22 111., 303. 
 
 3 District Township of Hesper v. Independent District, etc., 
 34 Iowa, 306. 4 The State, etc., v. Woolem, 39
 
 36 LAW OF PUBLIC SCHOOLS. 
 
 Although the luW directs that the polls shall bo 
 closed at a designated hour, and this question is 
 at issue, unless it be made to appear that votes 
 were cast after that hour which change the result, 
 the irregularity will not be fatal. 1 
 
 So, too, votes should not be rejected merely be- 
 cause the judges closed the polls an hour before 
 the time prescribed, if there is no evidence that 
 any voter offered to vote after the polls were 
 closed, or was prevented from voting by reason of 
 such closing of the polls. 9 
 
 2. CONDUCT OF THE ELECTION, AND THE IRREGU- 
 LARITIES THEREIN. 
 
 Any mere irregularity in conducting an election 
 which does not deprive any voter of his franchise, 
 or allow an illegal vote, or change the final result, 
 will not vitiate the election.' 
 
 An election is not invalidated by the fact that 
 
 > Piattc. The People. 29 111., 51. See Locust Ward Elec- 
 tion, 4 Pa. Law Journal, 341, and McCrary's " Atn. Law of 
 Elections," Sees. 114-141. 
 
 * Cleland v. Porter, 74 111., 76. 
 
 Whipley r>. McKune, 12 Cal., 352 ; Sprague r. Norway, 
 31 Cal., 173 ; Keller v. Chapman, 34 Cal., 635 ; Piatt t>. People, 
 29 III., 54 ; Augustiu t. Eggleston, 12 La. Ann., 841 ; Lanier 
 r. Gallatas, 13 La. Ann., 175 ; State . Mason, 14 La. Ann., 
 505 ; People v. Cook, 8 N.Y., 67 ; McKinney t>. O'Connor, 26 
 Texas, 5.
 
 NORMAL SCHOOL, 
 
 ELECTIONS. A "^-Ca/. 37 
 
 illegal votes were included, when the number of 
 such illegal votes is not enough to change the ma- 
 jority ; ! but when the admission of an improper vote 
 changes the result of an election the election is 
 void. 8 
 
 The will of the majority is to be respected even 
 though it be irregularly expressed. 3 
 
 3. SUFFICIENCY OF THE ELECTION. 
 
 A majority of all the votes cast is not requisite 
 to the choice of an officer, except when made so 
 by express statutory enactment. 
 
 Where there is no positive statute to the contrary, 
 a plurality of the votes cast will suffice to elect. 4 
 
 That the candidate who stood highest on the list 
 in ineligible does not give the election to the next 
 highest. In such a case there is no choice, and the 
 election is invalid. 6 
 
 1 Judkins v. Hill, 50 K H., 140 ; Third School District, 
 etc., . Gibbs, 2 Gush. (Mass.), 39; Sudbury v. Steams, 21 
 Pick. (Mass.), 148. 
 
 9 State v. The Judges, etc., 13 Ala., 805. 
 
 3 Juker v. Commonwealth, 20 Pa. St., 493. 
 
 4 " Cooley on Constitutional Limitations," 619. 
 
 5 Saunders v. Haynes, 13 Cal., 145 ; Opinion of the Judges, 
 38 Me., 597 ; Sublett v. Bed well, 47 Miss., 266 ; State v. Boal, 
 46 Mo., 528 ; People v. Clute, 50 N.Y., 451 ; Commonwealth 
 v. Cluley, 56 Pa. St., 270 ; State . Giles, 1 Chandler (Wis.),
 
 38 LAW OF PUBLIC SCHOOLS. 
 
 The ballots cast at an election are better evidence 
 than the tally list, made from them, of the num- 
 ber of votes. 1 
 
 4. IMPERFECT BALLOTS. 
 
 In an election for school directors all tickets 
 voted which have more names for the offices than 
 there are vacancies to be filled must be rejected." 
 
 A single piece of paper cast as a ballot and con- 
 taining the name of a candidate more than once, 
 should be counted as one vote, and not rejected as 
 illegally thrown.* 
 
 If a voter has written upon his ballot the name 
 of a particular person in connection with the title 
 of office, and omits to strike out the name printed 
 on it in connection with the same office, the writ- 
 ing will prevail over the printing, and evidence to 
 the contrary is not admissible to explain it. 4 
 
 A ballot indorsed for " trustees of public schools," 
 instead of for "trustees of common schools," AV;I- 
 
 112 ; State t>. Smith, 14 Wis., 497. Contra, Carson t. McPhet- 
 ridge, 15 Ind., 827 ; Gulick t>. New, 14 Ind., 93. 
 
 1 State t>. The Judges, etc., 13 Ala., 805 ; People t. Holden. 
 28 Col., 123. 
 
 1 Contested Election, Phila. (Pa.), 437. 'And see also 
 People v. Cicott, 10 Mich., 283 ; Carpenter t>. Ely, 4 Wis., 420. 
 
 1 People r. Holden, 28 Cal., 123. 
 
 4 McCrary's "Am. Law of Elections," Sees. 408, 409.
 
 ELECTIONS. 39 
 
 held sufficient. 1 So, where a statute provided for 
 the election of ''police magistrates/' votes thrown 
 for "police justices" were held to be good." 
 
 It seems that a mere defect in the naming of 
 a candidate will not render the ballot illegal, if 
 the intent of the voter can fairly be gathered from 
 it, as where J. W. J. was a candidate for election 
 in a district where there was no J. J. , it was held 
 that votes cast for J. J. were presumably intended 
 for J. W. J., and should have been counted for him. 3 
 
 If the sound is the same, errors of orthography 
 will not authorize the rejection of the ballot. 4 
 
 Technical nicety should not be allowed to pre- 
 vail over the intention of the voter fairly gathered 
 from the ballot and facts of general notoriety. 
 
 Where one Joseph Talkington was a candidate 
 for constable, it was held that votes cast for " Talk- 
 ington" for that office should be counted for 
 Joseph. 5 But where the word "Pence" was writ- 
 
 1 People v. McManus, 34 Barb., 620. 
 
 2 People v. Mattesbn, 17 111., 167. 
 
 3 People v. Kennedy, 37 Mich., 67. 
 
 4 People v. May worm, 5 Mich., 146. 
 
 6 Talkington v. Turner, 71 111., 234. And see Attorney-Gen- 
 eral v. Ely, 4 Wis., 430 ; People v. Ferguson, 8 Cowen, 102 -, 
 People v. Seaman, 5 Denio, 409 ; People v. Cook, 8 K Y. (4 Seld.) 
 67 ; People v. Cicott, 16 Mich., 283 ; People v. Pease, 27 
 N. Y., 64.
 
 40 LAW OF PUBLIC SCHOOLS. 
 
 ten on a ticket for sheriff, and one Spence was 
 a candidate, the vote was rejected. 1 
 
 Where, in a ballot a name placed above another 
 by a slip partly obliterates it, it will be sufficient 
 if it t;hows the intent. 1 
 
 1 State v. The Judges, etc., 13 Ala., 805. 
 9 People t>. Cicott, 16 Mich., 283.
 
 SCHOOL OFFICERS. 41 
 
 CHAPTER V. 
 
 SCHOOL OFFICERS. 
 
 1. UNITED STATES COMMISSIONER OF EDUCA- 
 TION. 2. STATE SUPERINTENDENT OF PUBLIC IN- 
 STRUCTION. 3. COUNTY SUPERINTENDENT. 4. DI- 
 RECTORS, TRUSTEES, ETC. : A. Their Powers and 
 Duties ; B. Their Contracts ; C. Their Liability 
 for Negligence. 5. TREASURER. 6. VACANCIES BY 
 OPERATION OF LAW. 
 
 1. UNITED STATES COMMISSIONER OF EDUCATION. 
 
 BY Act of March 2, 1867, Congress established 
 a department, since known as the Bureau of Edu- 
 cation, " for the purposes of collecting such sta- 
 tistics and facts as shall show the condition and 
 progress of education in the several States and 
 Territories, and of diffusing such information re- 
 specting the organization and management of school 
 systems and methods of teaching as shall aid the 
 people of the United States in the establishment 
 and maintenance of efficient school systems, and 
 otherwise promote the cause of education through- 
 out the country." It was established as an iude-
 
 42 LAW OF PUBLIC SCHOOLS. 
 
 pendent bureau, but was subsequently attached to 
 the Department of the Interior by Act of July 20, 
 18G8. 
 
 The head of this bureau is called the Commis- 
 sioner of Education, and it is his duty to present 
 annually to Congress a report embodying the results 
 of his investigations and labors, together with a 
 statement of such facts and recommendations as 
 will, in his judgment, subserve the purpose for 
 which the office is established.' 
 
 In the Centennial message of the President an 
 amendment to the Constitution was suggested 
 which should make public education a subject of 
 national cognizance. As the matter now stands, 
 public instruction in this country is left entirely 
 to the States, each of which frames and regulates 
 its own system by appropriate constitutional pro- 
 visions and legislation. 
 
 Although in the different States the details vary, 
 yet the management of the schools is in the hands 
 of officers chosen by the people, and whose duties 
 are everywhere much the same. The National Gov- 
 ernment has been very liberal in the donation of 
 lands, and of the proceeds arising from the sale 
 thereof, yet the schools have been supported main- 
 ly by voluntary taxation, voted by the people, and 
 this taxation and the apportionment of interest ou 
 
 1 Rev. Stat. U. S., Sees. 516, 517, and 518.
 
 SCHOOL OFFICERS. 43 
 
 the permanent funds have necessitated the employ- 
 ment of officers essentially the same in nearly all 
 the States and Territories. 
 
 It is the object of this chapter to present the 
 decisions upon questions of official duties and lia- 
 bilities which are common to all the States. 
 
 2. STATE SUPERINTENDENT OF PCJBLIC INSTRUC- 
 TION. 
 
 The State Superintendent of Schools, or Super- 
 intendent of Public Instruction, is the highest 
 officer in the common school system. 
 
 This office exists under some title in every one 
 of the States and Territories, and in those States 
 in which attempts have been made to abolish it, the 
 movement has proved disastrous to the school in- 
 terests, and the office has been restored. 
 
 It is generally the duty of the State Superin- 
 tendent to supervise all of the public schools in 
 his State, to call upon the officers under him for 
 reports upon matters concerning which they are 
 "by law required to gather information, to ascertain 
 the number of children residing in each district 
 and the number attending school, the amount 
 paid for salaries, the number of school-houses and 
 the amount expended in building school-houses, 
 and to report this information, together with such
 
 44: LAW OF PUBLIC SCHOOLS. 
 
 other information as he may acquire concerning 
 the operation of the common school system. He 
 also tries and determines appeals from inferior 
 officers upon questions of school law, and perform* 
 duties pertaining to the distribution of the State 
 school funds. 
 
 He ought also to recommend such changes in 
 the law or such additional legislation as he may 
 deem beneficial to the system of public education. 1 
 
 The duties of this officer and the law governing 
 his actions are usually made explicit by statute. 
 
 3. COUNTY SUPERINTENDENT. 
 
 In most of the States there is in each county an 
 officer known by the title of County Superinten- 
 
 1 The Bureau of Education was established by Congress 
 because of the numerous inquiries by foreign educators and 
 others for statistics and information concerning public educa- 
 tion in the United States. The reports of that bureau are 
 now exchanged and sent to the various foreign nations, and 
 their fulness and accuracy depend much on the readiness with 
 which State superintendents co-operate with the bureau. If 
 the State superintendent's reports are not full his State will be 
 imperfectly represented. This is a matter demanding likewise 
 the especial attention of the city supeintendcnts. Secondary 
 or hitrh-school education has heretofore been very poorly rep- 
 resented in the reports of the bureau, and it is doubtless owing 
 to a lack of authentic information from city superintendents, 
 or from them through the medium of the State superintcndeuts.
 
 SCHOOL OFFICERS. 45 
 
 dent, or some similar title, who serves as the or- 
 gan of communication between the State Superin- 
 tendent and the toAvnship or district authorities. 
 His duties vary in the different States, but it is 
 usually his duty to gather statistics as to the num- 
 ber of youth of school age in the county, and in 
 each school district therein, and the number 
 taught, and such other information as is necessary 
 to exhibit the true condition of the schools under 
 his charge. This is embodied in a report to the 
 State Superintendent. It is also generally his duty 
 to examine applicants for teachers' certificates, and 
 to grant certificates to such as possess the neces- 
 sary qualifications, and to exercise such supervision 
 of the schools in his county as will advance the 
 public interests in the matter of education. 
 
 In some of the States, particularly the New 
 England States, there is no such county officer, 
 but the reports from the towns are made directly 
 to the State Superintendent. 
 
 The County Superintendent is not entitled to an 
 injunction to restrain one frorn teaching on the 
 ground that he is teaching without a certificate of 
 qualifications. ' 
 
 Where the statute vests a discretionary power in 
 a County Superintendent in granting licenses to 
 teach, the judgment of the court will not be sub- 
 
 1 Perkins v. Wolf et al, 17 Iowa, 228.
 
 46 LAW OF PUBLIC SCHOOLS. 
 
 stituted for that of the officer, and mandamus will 
 not lie to compel him to issue a license, but 
 where he wholly fails to act on an application he 
 may be compelled by mandamus to take action 
 thereon. ' 
 
 It is a general principle lying at the base of the 
 law of mandamus that the courts will not interfere 
 with nor attempt to control the judgment or dis- 
 cretion of any officer whose official duties call for 
 the exercise of some degree of judgment or discre- 
 tion. Where such an officer wholly refuses to act 
 mandamus will lie to compel action, but not to 
 control such action, nor to substitute the discretion 
 or judgment of the court for that of the officer. 9 
 
 An officer whose duties are judicial or quasi- 
 judicial is not liable for errors of judgment or 
 discretion in the discharge of those duties unless 
 he acts from corrupt or malicious motives. 
 
 In an action on the case against the Superin- 
 tendent of Schools of a county for illegally revok- 
 ing a teacher's certificate, the plaintiff, in order to 
 show malice, is not compelled to prove personal 
 hatred or ill-will ; but if the defendant acted rash- 
 
 1 Bailey t. Ewart, Sup. Court of Iowa, October 23, 1879. 
 Reported, " Northwestern Reporter," vol. ii. N. 8. No. 11, 
 p. 1009. 
 
 * High's " Extraordinary Legal Remedies," Sees. 24, 34, 42.
 
 SCHOOL OFFICERS. 47 
 
 ly, wickedly, and wantonly in revoking the certifi- 
 cate, the jury may infer malice. 1 
 
 4. DIRECTORS, TRUSTEES, ETC. 
 
 A. Their Powers and Duties. A board of 
 school directors, though a corporation, is pos- 
 sessed of certain specially defined powers, and 
 can exercise no others, except such as result from 
 fair implication. 8 
 
 In Iowa it is held that the duties of school di- 
 rectors respecting the discharge of teachers, im- 
 posed by Section 1734 of the Code of 1873, are of 
 a judicial character." 
 
 The officers charged with the control and man- 
 agement of the schools have a right to dismiss a 
 teacher employed in said schools upon breach of 
 the contract, either by reason of failure to teach 
 or because of incompetency, 4 and such officers are 
 not liable in damages if they honestly err in the 
 discharge of this duty. 4 
 
 1 Love v. Moore, 45 111., 12. 
 
 8 Peers v. Board of Education, 72 111.. 508. 
 
 3 Smith v. The District Township of Knox, 42 la., 522. 
 
 4 Crawfordsville v. Rays, 42 Ind. , 200. 
 
 ' 5 Donahoe v. Richards, 38 Me., 164 ; Burton v. Fulton, 49 
 Pa. St., 151 ; Morrison v. McFarland, 51 Ind., 206 ; Bays v. 
 The State, 6 Neb., 167. But see contra, McCutchen v. Wind- 
 sor, 55 Mo., 149, where the court held that a statute making it
 
 48 LAW OF PUBLIC SCHOOLS. 
 
 If they act wantonly and maliciously, it gives a 
 cause of action against them personally, 1 but mal- 
 ice and injury must be affirmatively shown to have 
 been the impelling motives, even though no reason 
 was assigned for the removal of the teacher.* 
 
 A letter from an inhabitant of a school district 
 to the school committee, complaining of a school 
 teacher, is privileged, if written with an honest 
 purpose and for the public good.* 
 
 "Where a suit is instituted in the individual 
 names of school directors in reference to a matter 
 in which they are only interested in their corporate 
 capacity, it is proper to amend the title of the 
 cause by striking out the individual names of the 
 
 " the duty of the directors to manage and control its local in- 
 terests and affairs, " and giving them " power to hire legally 
 qualified teachers, "gives the directors no authority to dismiss a 
 teacher, unless for good and sufficient cause shown, which, in 
 his action against them for discharging him would be wholly a 
 question for the jury. 
 
 1 Clinton School District's Appeal, 56 Pa. St., 315. 
 
 * Burton v. Fulton, 49 Pa. St., 151. 
 
 "Townshendon Slander and Libel," 385 and 899; Bod- 
 well t>. Os;:ood, 3 Pick., 379. It is actionable to call a school- 
 mistress a dirty slut, or to charge her with being insane, or to 
 charge, by writing, a school-teacher with making a false report 
 to the school visitors, and with general untruthfuluess or with 
 a want of chastity. " Starkie on Slander," * 126 ; " Town- 
 shend on Slander and Libel," 272.
 
 SCHOOL OFFICEES. 49 
 
 directors, and substituting their corporate name. 
 The individual names, in such case, are regarded 
 as surplusage. 1 
 
 A suit or defence for a district must be con- 
 ducted in its corporate capacity by its proper offi- 
 cers. An individual member of a school district 
 has no right to appear and be heard in defence of 
 an action against the district." 
 
 A verbal contract of a school board employing 
 an attorney is valid although never entered on the 
 minutes. 3 
 
 In Iowa the president of a school district town- 
 ship has no authority to employ counsel at the 
 expense of the district, unless in a suit brought by 
 or against the district, and an appeal to the 
 county or State Superintendent to contest the cor- 
 rectness of an order of the board is not such a 
 suit. 4 
 
 The board has no right to make acceptances of 
 orders or bills of exchange so as to bind the dis- 
 trict, 6 unless expressly authorized by statute. 
 
 Where a board of education .is, by statute, 
 
 1 Shoudy v. School Directors, 32 111., 290. 
 
 2 Lane v. School District, 10 Mete. (Mass.), 462. 
 
 3 Page v. Township Board, etc., 59 Mo., 264. 
 
 * Templin & Sons v. District Township of Fremont, 36 
 Iowa, 411. 
 6 Peers v. Board of Education, 72 111., 508.
 
 50 LAW OF PUBLIC SCHOOLS. 
 
 made a body corporate, individual members acting 
 separately, although a majority, cannot contract a 
 debt thereof, or direct the issuance of an order to 
 pay it 1 
 
 School officers are not liable to an assignee of a 
 school order for constructive fraud in issuing an 
 order they had no power to issue.* 
 
 In Kentucky, school trustees failing to raise 
 and collect the school funds as required by law 
 are personally liable to the teacher for a failure to 
 pay him his salary as agreed.* 
 
 Power to establish and keep up a system of 
 graded schools implies authority to appoint a su- 
 perintendent thereof.' 
 
 A member of a school board or school commit- 
 tee has a right to order from the school-room a 
 boy who addresses him, in the presence of other 
 pupils, in a profane and insulting manner, and 
 where the pupil refuses to go he may be ejected, 
 no more force being used than may be necessary. 
 In such a case the pupil cannot recover as for a 
 wrongful expulsion.* 
 
 1 Ohio v. Treasurer of Liberty Township. 22 Ohio St., 144. 
 1 Boardman t>. Ilayne et al.. 29 Iowa, 339. 
 s Ferguson r>. True and Walker, 3 Bush (Ky.), 255. 
 4 Spring v. Wright, 03 111., 90; Stuart v. School District, 
 etc., 30 Mich., 9. 
 & Peck v. Smith, 41 Conn., 442.
 
 SCHOOL OFFICERS. 51 
 
 B. Their Contracts. A member of a district 
 school board cannot make a contract with the 
 board of which he is a member, for the building 
 of a school-house. Such contract is void upon 
 grounds of public policy. 1 
 
 The board of directors of a district township 
 has no authority to purchase lightning-rods for 
 school-houses, nor to give the obligation of the 
 district township therefor. 2 
 
 School charts, exhibiting and illustrating matters 
 to be taught to pupils, are not necessary appendages 
 to a school-house. 3 
 
 In Iowa the board of directors have no power to 
 make contracts for the purchase of maps, charts, 
 and other school apparatus, without being pre- 
 viously authorized by a vote of the electors. 4 
 
 The directors have no power to make an express 
 contract of the character specified, unless thereto 
 authorized. They could not so act as to raise an 
 
 1 Pickett v. School District, 25 Wis., 651 ; Hewitt v. Board 
 of Education, etc., Sup. Court of Illinois, 1880. " Northwest- 
 ern Reporter," Illiuois Supplement, voL L, No. 6, p. 462. 
 
 2 MonticeDo Bank v. District Township, etc., Sup. Court of 
 Iowa, June 10th, 1879 ; Wolf v. Independent School District, 
 etc., Sup. Court of Iowa, June 13th, 1879. 
 
 3 Gibson v. School District, etc., 36 Mich., 404. 
 
 4 Taylor v. District Township of Otter Creek, 26 Iowa, 281 ; 
 Manning . District Township of Van Buren, 28 Iowa, 332 ; 
 Taylor . Township of Wayne, 25 Iowa, 447.
 
 52 LAW OF PUBLIC SCHOOLS. 
 
 implied contract, or ratify the express one by the 
 acceptance and acquiescence in the use, by the 
 schools in the sub-districts, of the apparatus pur- 
 chased. 1 
 
 That such maps, charts, and apparatus were by 
 the board distributed among the several sub-dis- 
 tricts, and used in the schools thereof with the 
 knowledge of the directors and electors, and that 
 no steps were taken by the electors to repudiate 
 the contract, does not amount to a ratification of 
 it. Nothing short of an express ratification of the 
 electors in their corporate capacity would suffice.* 
 
 An independent district may provide for the 
 teaching of music in its schools, and the board 
 has power to purchase by verbal contract a musi- 
 cal instrument to be paid for out of any unappro- 
 priated funds of the district.' 
 
 There is a marked difference between the rights 
 of an assignee of a school order and those of an 
 assignee of a promissory note or bill of exchange. 
 The assignee of a school order must at his peril 
 ascertain what defences may exist against its col- 
 lection. 4 
 
 1 Taylor c. Township of Wayne, 25 Iowa, 447. 
 Id. 
 
 * Bellmeyer r. Independent District of Marshalllown, 44 
 Iowa, 564. 
 4 Newell t>. School Directors, 68 111., 514 ; School District
 
 SCHOOL OFFICERS. 53 
 
 An action may be maintained against a school 
 district on an order drawn by the proper officer 
 thereof. The creditor of a corporation is not re- 
 stricted to mandamus as his sole remedy. 1 
 
 Where a person acts in his official capacity, 
 which is disclosed in the contract itself, he is not 
 personally liable on the contract, although he has 
 failed to affix to his signature his official title. 9 
 
 C. Their Liability for Negligence. No private 
 action for neglect of corporate duty, unless given 
 by statute, lies against any quasi corporation as 
 such. 
 
 In the absence of a statute creating such lia- 
 bility a board of education is not liable in its cor- 
 porate capacity for damages for an injury result- 
 ing to a pupil while attending a public school, 
 from its negligence in the discharge of its official 
 duty in the erection and maintenance of a public 
 school building under its charge, nor for an in- 
 jury sustained by a scholar attending a public 
 school from a dangerous excavation in the school- 
 
 v. Stough, 4 Neb., 357 ; Boardman v. Hayne et al., 29 Iowa, 
 339 ; Bellmeyer v. Independent District, etc., 44 Iowa, 564 ; 
 Sheffield School Township v. Andress, 56 Ind., 157. 
 
 1 Cross v. The District Township, etc., 14 Iowa, 28. 
 
 * Baker et al. v. Chambles, 4 G. Gr. , 428 ; Lyon v. Adamson 
 et al., 7 Iowa, 509 ; Harvey v. Irvin et al., 11 Iowa, 82. See, 
 however, Bayliss v. Pearson, 15 Iowa, 279.
 
 54 LAW OF PUBLIC SCHOOLS. 
 
 house yard, owing to the negligence of snch school 
 board. 1 
 
 But in Bassett v. Pish et al., 19 N. Y. Supreme 
 Court (12 Hun), 209, it was held that the trus- 
 tees of the Union Free Schools, having the duty 
 imposed on them by statute of keeping schools in 
 repair, and being supplied with the necessary 
 means, they are personally and individually liable 
 to any person for special damages sustained by 
 reason of omission or negligence on their part. 
 This was reversed in the Court of Appeals, on 
 the ground that the trustees of a Union Free 
 School district is a corporation complete, and not 
 a quasi corporation, and that the individual trus- 
 tees are not liable, the negligence being the neg- 
 ligence of the corporation, for which it alone is 
 liable. 1 
 
 5. TREASURER. 
 
 The liability of the treasurer of a school district 
 is absolute for all funds which come into his 
 hands in his official capacity, and in case of loss 
 cannot be varied or diminished by reason of the 
 cause or manner of the loss.' 
 
 1 Pinch v. The Board of Education, 30 Ohio St., 87 ; Bige- 
 low . Randolph, 14 Gray, 541 ; II. Kent's Coram., * 274. 
 1 Bassett v. Fish, 75 N.Y. (Court of Appeals), 303. 
 8 The District Township of Bluff Creek v.' Hardinbrook, 40
 
 SCHOOL OFFICERS. 55 
 
 Where the loss occurs through the failure of a 
 bank, the treasurer is liable on his bond, although 
 he was not guilty of want of prudence or care in 
 failing to ascertain its financial condition. 1 I 
 
 Where the treasurer deposited money of the dis- 
 trict with his banker to his own individual credit, 
 which money was intended to meet certain bonds 
 of the district then about to fall due at, and 
 which were payable at the same bank, and the 
 treasurer so informed the banker, and directed 
 him verbally so to apply it, when the bonds should 
 be presented, and while the matter was in this 
 condition the bank failed, resulting in the loss of 
 the money, it was held that the banker was the 
 agent of the treasurer and not of the district, 
 and that the money was recoverable by the dis- 
 trict in an action on the treasurer's bond. 2 The 
 treasurer is liable absolutely for all money of the 
 district coming into his hands, which he has not 
 
 Iowa, 130 ; District Township of Taylor v. Morton, 37 Iowa, 
 550 ; District Township of Union v. Smith, 39 Iowa, 9 ; Lind- 
 sey v. Marshall, 20 Miss. (12 Smed. & M.), 587 ; Ward v. 
 School District No. 15, Colfax County, Sup. Court of Ne- 
 braska, March 18th, 1880, " Northwestern Reporter," vol. iv. 
 (N. 8.), No. 13, p. 547. 
 
 1 The State v. Powell, 67 Mo., 395. 
 
 * Ward . School District No. 15, etc., Sup. Court of Ne- 
 braska, March 18th, 1880, " Northwestern Reporter," vol. iv. 
 (N. 8.), No. 13, p. 547 (1001).
 
 56 LAW OF PUBLIC SCHOOLS. 
 
 lawfully disbursed, and the school district has no 
 power to release him from liability for money lost 
 or misapplied by him. 1 
 
 And where he resigns and absconds and fails to 
 pay over the money in his hands, as such treas- 
 urer, to his successor, no demand therefor is nec- 
 essary to maintain suit upon his official bond.' 
 
 If a school treasurer releases a mortgage given 
 to secure a debt due the school fund of his town- 
 ship, without an order of the board, he will be lia- 
 ble upon his official bond for any loss sustained in 
 consequence thereof. 8 
 
 6. VACANCIES BY OPERATION OF LAW. 
 
 The acceptance by a school officer of another 
 office incompatible with the school office renders 
 such school office vacant. 4 
 
 The duties of teacher and school trustee are in- 
 compatible, and the appointment of a trustee as 
 teacher, and the acceptance thereof, renders the 
 office of school trustee vacant.* 
 
 1 Ward . School District No. 15, etc., Sup. Court of Ne- 
 braska, March 18th, 1880, "Northwestern Reporter," vol. iv. 
 (N. S.), No. 13, p. 547 (1001). 
 
 1 Jenks c. School District, 18 Kan., 356. 
 
 Board of Trustees v. Misenheimcr, 78 III. , 22. 
 . 4 Ferguson c. True and Walker, 3 Bush (Ky.), 255 ; Cotton 
 r. Phillips, 56 N. H., 220. 
 
 Ferguson t>. True and Walker, 3 Bush (Ky.), 255.
 
 SCHOOL OFFICERS. 57 
 
 The offices of prudential committee and auditor 
 of a school district are incompatible, and one who 
 is elected to both offices at the same meeting and 
 accepts, the latter thereby declines the former. 1 
 
 1 Cotton 9. Phillips, 56 N. H., 220.
 
 58 LAW OF PUBLIC SCHOOLS. 
 
 CHAPTER VI. 
 
 USE OF SCHOOL PROPERTY. 
 
 Itf general the school property is to be used 
 only for the purposes of secular education, yet in 
 many of the States school-houses are temporarily 
 and occasionally used for other purposes, and such 
 temporary use has been held lawful. 
 
 A school-house may be used for township pur- 
 poses. 1 And the district electors may, at a meet- 
 ing for that purpose, lawfully direct the use of a 
 school-house for a private school, for the time be- 
 ing merely, but can confer no right of possession, 
 for any definite time, upon any one. A lease, by 
 trustees, of a public school-house for the purpose 
 of having a private or select school taught therein 
 for a term of weeks, is in violation of their trust, 
 and such use may be restrained at the suit of n 
 resident taxpayer of the district.' 
 
 In Iowa the district township electors have the 
 legal power to direct the school-houses therein to 
 be used for the purpose of Sabbath-schools, re- 
 
 1 Trustees, etc., v. Osborne, 9 Ind., 458. 
 * Chapin t>. 11111, 24 Vt., 528 ; Weir e. Day, Sup. Court of 
 Ohio, 1879, " Central Law Journal," vol. ix., p. 398.
 
 USE OF SCHOOL PROPERTY. 59 
 
 ligions worship, etc., and such use is held not to 
 be in conflict with Section 3, Article 1, of the 
 Constitution of Iowa, which provides that no law 
 shall be passed respecting the establishment of re- 
 ligion, nor shall any person be compelled to pay 
 tithes, taxes, or other rates for building or repair- 
 ing places of worship. 1 
 
 In the same case it was held that if the direct- 
 ors refuse to allow such use, mandamus will lie. 
 
 The power to permit the school-houses in a dis- 
 trict to be used for the purpose of religious wor- 
 ship and Sabbath-schools is conferred upon the 
 electors of the district legally assembled by a statute 
 authorizing them " to direct the sale or other dis- 
 position to be made of any school-house . . . that 
 may belong to the district. 8 
 
 In Illinois it has been decided that the tem- 
 porary use of a school-house for religious purposes 
 is not forbidden by the Constitution of that State. 
 An incidental use of a school-house for religious 
 purposes, not interfering with school purposes, is 
 not in. any reasonable sense inconsistent with the 
 faithful application of the property to school pur- 
 poses. Religion and religious worship are not so 
 placed under the ban of the Constitution of that 
 
 1 Davis v. Boget et al.. Sup. Court of Iowa, December, 
 Term, 1878, " West. Jurist," vol. xiii., No. 3. 50 la. 11. 
 8 Townshend v. Hagan et al. , 35 Iowa, 194.
 
 60 LAW OF PUBLIC SCHOOLS. 
 
 State that they may not be allowed to become the 
 recipient of any incidental benefit whatever from 
 the public bodies or authorities of the State. 1 
 
 In Connecticut, however, it was held that the 
 school property could not be used for religious 
 purposes against the objection of any single tax- 
 payer in the district, even though he may have 
 voted to allow such use. And an injunction will 
 be granted the taxpayer because he has no other 
 remedy." The force of that decision is greatly 
 abated by the fact that two of the five judges ably 
 dissented from the majority opinion. 
 
 The trustees of a school district may, subject to 
 the control of the district meeting, lawfully per- 
 mit the district school-house to be used out of 
 ordinary school hours for the purpose of private 
 instruction in vocal music of the district scholars 
 and of others residing in the district, and it is no 
 objection to such use that the teacher is compen- 
 sated by private subscription, or otherwise.* 
 
 1 Nichols t>. The School Directors, etc., Sup. Court of 
 Illinois, November 10th, 1879, "Chicago Legal News," vol. 
 xii.,No. 11, Whole No. 580. 
 
 * Schofleld v. Eighth School District, 27 Conn., 499. Subse- 
 quently it was enacted that any district may, by a two thirds 
 vote, allow the school-house or school-houses to be used for 
 any other purpose than school, when not in use for school pur- 
 poses. Laws of Connecticut (1872), Rev. of 1875, tit. 2, c. 5, 
 sec. 29. * Appeal of Barnes, 6 R. I., 591.
 
 USE OF SCHOOL PROPERTY. 61 
 
 In Missouri 1 and Wisconsin 2 the law may be 
 regarded as settled that the board of directors of 
 a school district cannot authorize the use of a 
 school-house for any other than school purposes. 
 
 In some of the States it is expressly provided 
 by statute that the trustees may permit the school- 
 house or school-houses of the district to be used 
 for literary, religious, or township purposes, when 
 not in use for school purposes. 
 
 The axithority to permit the school-house or 
 school-houses of the district to be used for other 
 than school purposes is expressly conferred upon 
 the trustees by statute in Kansas, New Jersey, and 
 "West Virginia. 8 
 
 In Maryland no school-house can lawfully bo 
 used for any other than public school purposes and 
 district school meetings, unless by consent of the 
 Board of County School Commissioners, or a ma- 
 jority of them.* 
 
 1 Dorton v. Hearn, 67 Mo., 301. 
 
 8 School District No. 8 v. Arnold, 21 Wis., 657. And see 
 Spencer . Joint School District, etc., 15 Kan., 259 since 
 changed by statute. 
 
 8 " Compiled Laws of Kansas," chap, xcii., art. 4, sec. 43 ; 
 "Rev. of Statutes of New Jersey," p. 1077, sec. 39, subdiv. 
 12 ; "Rev. Statutes of West Virginia" (1879), chap, clxxiv., 
 sec. 15, p. 999 (Kelley's). 
 
 4 " Rev. Code of Maryland" (1878), arfc. 27, sec. 29.
 
 62 LAW OF PUBLIC SCHOOLS. 
 
 In Connecticut it is provided that any school 
 district or town may, by a vote of two thirds of 
 those present at any legal meeting, allow its 
 school-house or houses, when not in use for school 
 purposes, to be used for any other purpose. 1 
 
 In Maine a school district has power, at any 
 legal meeting called for the purpose, to allow the 
 school-house to be used for meetings of religious 
 worship, lectures, and other similar purposes.* 
 
 Where such use of school property is unlawful, 
 an injunction will be granted at the suit of a tax- 
 payer who shows that the school-house has been 
 built partly out of taxes that he has paid, that ho 
 has children attending school in said school-house, 
 and that by the misuse complained of, the books 
 of his children are torn, soiled, carried away, lost 
 and misplaced, their copy-books written on or 
 thrown to the floor, their slates and pens broken, etc.* 
 
 An injunction will not lie to restrain the erec- 
 tion of a school-house or its use as a school near 
 one's dwelling-house, on the ground of the school 
 being a nuisance, even if the property is thereby 
 depreciated in value. 4 
 
 1 " General Statutes of Connecticut, Rev. of 1877), title ii. 
 chap, v., sec. 29. 
 
 * " Rev. Statutes of Maine." chap, xi., tit. ii.. sec. 24. 
 
 Spencer . Joint School District. 15 Kan., 259 ; Schoflcld 
 . Eiphth School District, 27 Conn., 499. 
 
 4 Harrisou v. Good, 11 L. R. (Eq Cas.), 388.
 
 ,**,* 
 
 SCHOOL DISTRICT MEETINGS. 6 
 
 CHAPTER YH 
 
 SCHOOL DISTRICT MEETINGS. 
 
 WHERE a meeting of a school district is held 
 for a special purpose, all that is necessary in the 
 form of the notice is that it should be so expressed 
 as that the inhabitants of the district may fairly un- 
 derstand the purpose for which they are convened. 1 
 
 It has been held that where the warning of a 
 school society meeting stated the object of the 
 meeting to be " to take into consideration the ex- 
 pediency of raising money for the use of schooling 
 for the year ensuing," such a warning was suf- 
 ficient to authorize the laying of a tax for the 
 purpose specified. 4 
 
 The meeting should be opened in a reasonable 
 time after the hour specified in the notice ; and 
 what is reasonable time depends, in some measure, 
 upon the circumstances of each particular case ; 
 but a delay of one hour and five minutes is not, 
 of itself, an unreasonable delay, there being no law 
 
 1 School District v. Blakeslee, 13 Conn., 227 ; Weeks v. 
 Batchelder, 41 Vt., 317 ; Moore v. Beattie, 33 Vt., 219. 
 J Bartlett v. Kinsley, 1/5 Conn., 327.
 
 64 T.AW OF PUBLIC SCHOOLS. 
 
 necessarily requiring the meeting to be opened 
 within that time. 1 Of course, where the statute 
 requires the meeting to be opened at a particular 
 time, it must be followed. But an irregularity in 
 this respect which does not affect the action of 
 the meeting, nor deprive any elector of his voice 
 in the deliberations of the meeting, would not, it 
 is believed, render the acts of the meeting illegal. 
 
 In New Jersey it was held that a special meet- 
 ing of the legal voters of a school district may 
 vote to raise money for school purposes, although 
 such appropriation has been refused at the annual 
 meeting. 4 
 
 Where it appears that a site for a school-house 
 has been chosen, it will not be invalidated because 
 the clerk has made irregularities or omissions in 
 describing the site selected. 8 " 
 
 Where it appears from the record of a school 
 district that the meeting was held on the day ap- 
 pointed, the presumption of law is that it was 
 held in suitable time in the day, and in pursuance 
 of the warning ; and if a party claims it to have 
 been held otherwise, the burden of proof rests 
 upon him. 4 
 
 1 School District c. Blakeslee, 13 Conn., 227. 
 
 State t>. Lewis, 35 N. J. L., 377. 
 
 3 Merritt v. Farm, 22 111., 303. 
 
 4 School District t>. Blakeslee, 13 Conn., 227.
 
 SCHOOL DISTRICT MEETINGS. 65 
 
 The intention of a corporation can be ascertained 
 only by the language of its recorded acts ; and 
 neither the private views nor the public declara- 
 tions of individual members of such corporation 
 can, for this purpose, be inquired into. 1 
 
 Its records are proper and legitimate evidence in 
 its behalf, of its votes, in a suit to which such 
 district is a party. 9 
 
 Under a statute which requires that school dis- 
 trict meetings shall be called by posting notices 
 thereof " on the district school-house and one 
 other public place within the limits of said dis- 
 trict," notices posted " one at the school-house 
 and one at the grist-mill, both in said district," 
 comply with the law and constitute sufficient no- 
 tice. 3 In New York it is provided by statute 
 that the proceedings of a district or neighborhood 
 shall not be held illegal for want of due notice to 
 all persons qualified to vote thereat, where the 
 omission to give such notice is not shown to have 
 been wilful and fraudulent. 4 
 
 1 Bartlutt 0. Kinsley, 15 Conn., 327 ; School District v. 
 Atherton, 12 Mete. (Mass.), 105. 
 8 School District v. Blakeslee, 13 Conn., 227. 
 3 Fletcher v. Lincolnville, 20 Me., 439. 
 * N. Y. Rev. Stat., vol. ii., chap. xv. tit. vii., sec. 7, p. 62.
 
 66 LAW OF PUBLIC SCHOOLS. 
 
 CHAPTER VIII. 
 EMPLOYMENT OF SCHOOL TEACHERS. 
 
 1. PARTIES TO THE CONTRACT. 2. A CERTIFI- 
 CATE PREREQUISITE. 3. CHARACTER OF THE CON- 
 TRACT. 4. CONDITIONS OF THE CONTRACT. 5. 
 BREACH OF THE CONTRACT. 6. REMEDIES. 7. DE- 
 FENCES. 
 
 1. PARTIES TO THE CONTRACT. 
 
 THE employment of public-school teachers is 
 very generally regulated "by statute, and it will be 
 found that in all the States the authority to em- 
 ploy teachers is conferred upon officers variously 
 styled as directors, trustees, or committees. It is 
 through these agencies that the school district or 
 school township acts, and when the officer acts 
 within the scope of his authority he binds the 
 district. 
 
 School districts are quasi corporations, and are 
 capable of suing and being sued, 1 and on breach 
 
 1 2 Kent's Comm. *274 ; 2 Bouvier's Law Diet., title, 
 " Quasi Corporation ;" School Commissioners v. Aiken, 5 Port. 
 (Ala.), 169; McLoud . Selby, 10 Conn., 390; Trustees of 
 School t>.Tatman,13 111., 27 ; State t>. Ilulin, 2 Oregon, 300 ; 
 Code of Iowa, 1873, sec. 1716 ; Whitmore t>. Ilogan, 22 Me.,
 
 EMPLOYMENT OF SCHOOL TEACHERS. 67 
 
 of a contract legally made with the district or 
 town, through its proper officer, a right of action 
 accrues as against such district or town. 1 
 
 A contract made by such school officer with a per- 
 son to teach in a public school in the district for a 
 period extending beyond the trustee's term of office 
 is valid and binding on his successors in office. 5 
 
 Any person possessing the proper certificate of 
 qualification required by law, and who does not la- 
 bor under some legal disability, is competent to 
 enter into a contract to teach. 3 
 
 564; O'Neal v. School Commissioners, 27 Md., 227; School 
 District v. Thompson, 5 Miun., 280 ; Littleworth v. Davis, 50 
 Miss., 403 ; Denniston v. School District, 17 N. H., 492 ; Hor- 
 ton <D. Garrison and Hoffman, 23 Barb. (N. Y.), 176 ; Whar- 
 ton V. School Directors, 42 Pa. St., 358; District No. 3 v. 
 Macloon, 4 Wis., 79; Puterbaugh . Township Board, etc., 
 53 Mo., 472 ; Grant t>. Fancher, 5 Cowen, 309. 
 
 1 Puterbaugh v. Township Board, etc. , 53 Mo. , 472 ; Cascade 
 v. Lewis, 43 Pa. St., 318. 
 
 * Gillisfl. Space, 63 Barb. (N.Y.), 177 ; Silver v. Cummings, 
 7 Wend. (N. Y.), 181 ; Wilson . East Bridgeport School Dis- 
 trict, 36 Conn., 280 ; Wait v. Ray, 67 N.Y. (Court of Appeals), 
 36. But where the contract is wholly to be carried out in the 
 future, so as to divest future boards of the power to select such 
 teachers as they shall desire, it is invalid. School Directors v. 
 Hart, 4 Bradw. R., 224 ; Stevenson v. School Directors, 87 III., 
 255. 
 
 8 In some of the States, trustees or directors are pro- 
 hibited by statute from employing their near relatives, and such
 
 68 LAW OF PUBLIC SCHOOLS. 
 
 An infant possessing the requisite qualifications 
 may, with the assent of his parent or guardian, 
 contract to teach school. 1 
 
 Where a minor with his parent's consent con- 
 tracts for himself, or where he is compelled to go 
 abroad and do for himself, the minor is entitled 
 to receive his earnings, and payment to him is a 
 full satisfaction.* 
 
 It has been held, however, that emancipation of 
 a minor does not enlarge his capacity to contract, 
 but merely entitles the minor to his earnings. 3 
 
 contracts arc made void. TKus, in New York no i>erson who 
 is within two degrees of relationship by blood or marriage to 
 any such trustees shall be so employed (as teachers), except with 
 the approval of two thirds of the voters of such district present 
 and voting upon the question at an annual or special meeting 
 of the district. N. Y. Rev. Stat., vol. ii., chap, xv., tit 7, 
 sec. 9, p. 70. 
 
 1 Monaghan t>. School District No. 1, 88 Wis., 100 ; 1 Par- 
 sons on Contracts, * 310, and notes " i," " j," and" k. " 
 
 Farrell v. Farrell, 3 Iloust. (Del.), 633 ; Nightingale t>. 
 Withington, 15 Mass., 272 ; Jenney . Alden, 12 Mass., 375 ; 
 Angell v. McLellan, 16 Mass., 28 ; Whiting r. Earle, 3 Pick. 
 (Mass.), 201 ; Nixon t>. Spencer, 16 la., 214 ; Wolcott . 
 Rickey et al, 22 la., 171 ; Oalbraith . Black, 4 S. & R. (Pa.). 
 207 ; The ^Etna, 1 Ware (U. 8.), * 462 ; Stone t>. Pulsipher. 16 
 Vt., 42 ; Conover t>. Cooper, 3 Barb. (N.Y.), 115 ; Godfrey t>. 
 Hays, 6 Ala., 501 ; Lord . Poor, 23 Me., 569 ; Steele t>. 
 Thatcher, 1 Ware (U.S.), *91. 
 
 * 1 Parsons on Contracts, * 811 ; Person . Chase, 37 Vt., 
 647 ; Schoulcr on Domestic Relations, *561.
 
 EMPLOYMENT OF SCHOOL TEACHERS. 69 
 
 It is well enough to bear in mind that, as a 
 general rule, an infant who makes a definite con- 
 tract to perform services may put an end to it 
 whenever he chooses. In such a case the infant 
 may recover proportional compensation for the ser- 
 vices performed, subject to any reasonable offsets. 1 
 Although no suit can be maintained against a 
 minor for breach of contract of service, yfet dam- 
 ages sustained by reason of such breach of the con- 
 tract may be set off against the minor's claim for 
 services. 
 
 At common law married women are disabled 
 from making such contracts, 2 but in many of the 
 States legislation for the removal of this disability 
 has been adopted. 3 
 
 Where one member of a board of directors or 
 trustees contracts with the other member or mem- 
 bers, such a contract has sometimes been held 
 void on the grounds of public policy. 4 Sometimes 
 
 1 Schouler on Domestic Relations, * 561. 
 8 1 Parsons on Contracts, * 345. 
 
 3 In the following-named States and Territories the right to 
 make contracts and receive wages is given to married women 
 by statute viz., Colorado, Connecticut, Dakota Territory, Del- 
 aware, Illinois, Iowa, Kansas, Maryland, Massachusetts, 
 Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, 
 New Hampshire, New Jersey, New York, Oregon, Vermont, 
 Wyoming Territory, and Wisconsin. 
 
 4 Pickett v. School District, 25 Wis., 551.
 
 70 LAW OF PUBLIC SCHOOLS. 
 
 the school office has been held to be vacated there- 
 by ; the duties of teacher and trustee are incom- 
 patible. ' 
 
 2. A CERTIFICATE PREREQUISITE. 
 
 Before any contract to teach can be entered into, 
 and as a prerequisite thereto, the teacher must 
 have and produce a certificate of mental and moral 
 qualifications, signed by the proper examining offi- 
 cer. 8 
 
 Circumstances cannot supersede the necessity of 
 this certificate, nor can the committee waive it so 
 as to bind the district. 3 
 
 In Tennessee the common-school commissioners 
 are indictable for employing a teacher who has no 
 examiner's certificate. 4 
 
 In Vermont, however, it is held that the re- 
 quirement of the law is satisfied if the certificate 
 
 1 Ferguson 0. True and Wulker, 8 Bush (Ky.), 255. 
 
 * Jen ness v. School District No. 31, 12 Minn., 448 ; Robinson 
 v. The State, 2 Coldw. (Tenn.), 181 ; Baker v School District, 
 12 Vt., 192; Goodiich v. Fairfax, 26 Vt., 115; Welch . 
 Brown, 30 Vt., 580 ; Harrison Township c. Conrud, 26 Ind., 
 837 ; Jackson v. Humpdcn, 20 Me., 37 ; Botkiu v. Osborue, 39 
 111., 609 ; Casey v. Baldridge, 15 111., 65 ; Barr v. Deniston, 19 
 N. II., 170 ; Finch v. Cleveland, 10 Burb. (N.Y)., 290. 
 
 1 Baker v. School District, 12 Vt., 192 ; Goodrich. Fairfax, 
 26 Vt., 115 ; Welch v. Brown, 80 Vt., 586. 
 
 4 Robinson v. the State, 2 Coldw. (Tenn.), 181.
 
 EMPLOYMENT OF SCHOOL TEACHERS. 71 
 
 is obtained on the evening of the first day of 
 school. 1 So, if it appears that a certificate was 
 made out at the proper time, by the proper offi- 
 cer, upon satisfactory evidence of qualifications, 
 this will suffice, although by accident or neglect the 
 certificate was not put into the teacher's hands.* 
 
 In Vermont, it is said, the certificate need not 
 contain any statement of the good moral character 
 of the teacher, although a good moral character is 
 essential, and must be inquired into by the exam- 
 iner. 3 
 
 The certificate of a majority of the superintend- 
 ing committee of a town, produced by the school- 
 master to the agent; employing him, is a valid cer- 
 tificate under Maine Eev. Stat., ch. 17, although 
 that majority did not act together in the examina- 
 tion. 4 
 
 If the teacher has obtained a certificate without 
 fraud, or use of improper arts on his part, al- 
 though the certificate was issued without any ex- 
 amination having been made, still, it is said, this 
 complies with the law to such an extent that the 
 lack of examination is no defence to an action for 
 the teacher's salary. 5 
 
 1 Paul . School District, 28 Vt., 575. 
 
 9 Blanchard v. School District. 29 Vt., 433. 
 
 3 Crosby v. School District, 35 Vt., 623. 
 
 4 Stevens t>. Fassett, 27 Me., 266. 
 
 6 George v. School District No. 8, 20 Vt., 495.
 
 72 LAW OF PUBLIC SCHOOLS. 
 
 * 
 
 Any contract made with a teacher who does not 
 possess the required certificate of qualifications is 
 void, and the teacher can draw no pay under it. 1 
 And this is so, even though the superintending 
 school committee, whose duty it is to make the ex- 
 aminations, neglects or wantonly refuses to 1 examine 
 the teacher. 2 
 
 A school district has no right to waive this re- 
 quirement of the law, and consent to judgment. 
 Any person interested as a taxpayer in the district 
 may enjoin such judgment. 8 
 
 The county superintendent is not entitled to an 
 injunction to restrain a person from teaching a 
 public school, or the officers from paying for such 
 services out of the school funds of the district, on 
 the ground that such teacher is acting without a 
 certificate of qualifications in violation of the laws 
 of the. State. Such a proceeding may be main- 
 tained by any citizen or resident of the district, 
 
 1 Smith v. Curry, 16 111., 147 ; Casey t>. Baldridge, 15 III, 
 65; Botkin t>. Osborne, 89 III, 609; Harrison Township . 
 Conrad, 26 Ind., 337 ; Jackson t>. Hampden, 20 Me., 87 ; Dore 
 . Billings, 26 Me., 56 ; Barr. Deniston, 19 N. II., 170 ; Baker 
 e. School District, 12 Vt., 192 ; Goodrich t>. Fairfax, 26 Vt., 
 115 ; Welch . Brown, 80 Vt., 586. 
 
 9 Jackson t>. Hampden, 20 Me., 87. 
 
 1 Barr v. Deniston, 19 N. H., 170.
 
 EMPLOYMENT OF SCHOOL TEACHERS. 73 
 
 but not by the county superintendent, merely by 
 virtue of his office. 1 
 
 Under a statute which declares that the certifi- 
 cate which the school commissioner is required to 
 grant to teachers after examination shall not be 
 valid for more than a year without the approval 
 of such certificate by the commissioner indorsed 
 thereon, and which requires every teacher to ob- 
 tain and produce such certificate before employ- 
 ment, the spirit of the law was complied with, al- 
 though the commissioner did not approve the cer- 
 tificate in writing, but declared the teacher com- 
 petent, and gave his sanction to the previous ar- . 
 rangement of the school in the presence of the 
 trustees. 2 
 
 A teacher's certificate* of qualifications obtained 
 from the school commissioner is prima facie evi- 
 dence of his being qualified to perform the duties 
 of a teacher, and it devolves upon the school di- 
 rectors to prove incompetency or neglect of duty 
 when they have dismissed him for either of these 
 causes. 3 
 
 1 Perkins v. Wolf et al", 17 Iowa, 228 ; Barr v. Deniston, 19 
 N. H , 170. 
 
 2 Barnhart v. Bodenhammer, 31 Mo., 319. 
 
 3 Neville v. School Directors, 36 111., 71.
 
 LAW OF PUBLIC SCHOOLS. 
 
 3. CHARACTER OF THE CONTRACT. 
 
 The contract is, in many of the States, required 
 by law to be reduced to writing. Where this is 
 the case, questions arise as to the ratification of a 
 parol contract, and its effect. 
 
 In Kansas it is said that one teaching in a 
 school without a written contract is entitled to 
 receive the reasonable value of the services per- 
 formed. ' 
 
 In Iowa, where a teacher had made a parol con- 
 tract with the directors of a school district to 
 teach nine months, and had taught seven, receiv- 
 ing pay therefor, after which tie was discharged, 
 it was held, that although the contract did not 
 comply with the statute requiring such engage- 
 ments to be in writing, nevertheless the accept- 
 ance of part -performance was a ratification, ren- 
 dering the district liable on the contract. 9 AVhere 
 the law requires the contract to be in writing, and 
 there is a written contract between the teacher 
 and the district, it will be conclusively presumed, 
 in the absence of fraud, accident, or mistake, that 
 
 1 Jones v. School District, 8 Kan., 302. 
 
 * Cook T. Independent District of North McGregor, 40 
 Iowa, 444 ; Athearn r. The Independent School District of 
 Millersburg, 33 Town, 105.
 
 EMPLOYMENT OF SCHOOL TEACHERS. 75 
 
 it contains the entire agreement of the parties as 
 to the subject-matter covered by it. 1 
 
 4. CONDITIONS OF THE CONTRACT. 
 
 The contract of the teacher is to teach his pupils 
 what he has undertaken, and to have a special care of 
 their morals. 2 
 
 The contract is for the personal services of the 
 teacher, and such teacher cannot substitute a proxy, 
 however competent. If a teacher leaves his place 
 and fails to resume it, and when requested to return 
 insists that it is sufficient that he has left a compe- 
 tent substitute, this is cause enough for dismissal. 3 
 
 The law docs not require the highest order of tal- 
 ents or qualifications in a teacher. It only requires 
 average qualifications and ability, and the usual ap- 
 plication to the discharge of his duties to fulfil his 
 contract. 4 
 
 The contract is necessarily subject to any con- 
 ditions imposed by the law from which the power to 
 contract is derived. Thus where a statute empowers 
 the board of directors to employ teachers and remove 
 
 1 Mann v. The Independent School District, etc.. Supreme 
 Court of Iowa, October, 1879. Reported in Northwestern 
 Reporter, vol. ii. (N. S.), No. 11, p. 1005. 
 
 2 1 Starkie, 421. 
 
 3 School Directors, etc., v. Hudson, 88 111., 563. 
 
 4 Neville t>. School Directors, 36 111., 71.
 
 76 LAW OF PUBLIC SCHOOLS. 
 
 them at pleasure, the statute enters as part of any 
 contract made under it, and the teacher employed by 
 contract under it may be discharged, notwithstand- 
 ing the terms of his employment. 1 
 
 It sometimes becomes a question whether the stat- 
 ute under which the contract is made gives the right 
 to dismiss a teacher at pleasure. It does not, unless 
 clearly so expressed in the statute. Thus Wagn. 
 (Mo.) Stat. 1243, sec. 7, making it " the duty of 
 the directors to manage and control its local interests 
 and affairs," and giving them power to hire legally 
 qualified teachers, gives them no authority to dismiss 
 a teacher unless for good and sufficient cause shown. 1 
 
 In case of their wantonly obstructing him in the 
 discharge of his duties, or dispossessing him of the 
 school-house, they would be individually liable in 
 damages for tort.' 
 
 A clause in a contract between a school district 
 board and a teacher, reserving the right to discharge 
 the teacher whenever he fails to give satisfaction, is 
 valid, under a statute which provides that the county 
 superintendent may dismiss " for incornpctency, 
 cruelty, or immorality." 4 
 
 1 Jones i>. Nebraska City. 1 Ncl>., 170 ; Wood e. Inhabitants 
 of Medfielil, 123 Mass., 54.1 ; Knowles t. Boston, 12 Gray 
 (Mass.). 339. 
 
 9 McCutchen v. Windsor, 55 Mo., 149. Id. 
 
 4 School District t>. Colvin, 10 Kan.. 2*3.
 
 EMPLOYMENT OF SCHOOL TEACHERS. 77 
 
 Where the contract between a teacher and the 
 school district contained a stipulation that she would 
 leave if the school was not satisfactory, it was held 
 that dissatisfaction with her school, and not personal 
 unpopularity in the district, would be a reason for 
 dismissal under this provision. 1 
 
 When a teacher has been irregularly dismissed, his 
 subsequent continuance in the school, with the assent 
 of a majority of the trustees, is a waiver of such dis- 
 missal, and a satisfaction of the original employment.* 
 
 Unless such power is conferred by statute, the trus- 
 tees of a school district have no right to dismiss a 
 teacher holding the proper certificate, without cause, 
 and against his consent, before the expiration of his 
 contract. 9 
 
 Where the teacher of a public school contracted to 
 " faithfully and impartially govern and instruct the 
 children, ... to strictly conform to the rules 
 established by the board of directors, ... to 
 perform all the duties required of her by part 8, sec. 
 41, of the school laws," and it was provided in the 
 contract that if she should be dismissed by the sub- 
 director for a violation of any of the stipulations 
 therein, that she would not be entitled to compensa- 
 tion after such dismissal, it was held that the sub- 
 director had a right to dismiss her for a failure to 
 
 1 Eicbardson v. School District, 38 Vt., 603. 
 
 8 Finch v. Cleveland, 10 Barb. (N. Y.), 290. 3 Id.
 
 78 LAW OF PUBLIC SCHOOLS. 
 
 control the school, even if she was not unfaithful in 
 the discharge of her duties. 1 
 
 Where the word " month" in school contracts is 
 not defined by statute, careful officers and teachers 
 avoid any question by making their contracts for a 
 certain number of weeks. 
 
 The word month has various meanings, there be- 
 ing calendar months, solar months, and sevenil 
 kinds of lunar months. 
 
 In law the word " month" means either a calen- 
 dar or lunar month. The civil or calendar months 
 are the months as adjusted in the common or Grego- 
 rian calendar, and known as January, February, etc. 
 A lunar month, the period of one synodical revolu- 
 tion of the moon, is, in mean length, 29 days, 12 
 hours, 44 minutes, and 2.87 seconds, but in popular 
 usage four weeks are called a lunar month. 
 
 Under the old English common law the word 
 " month," whenever it occurred, was construed to 
 mean a lunar month of four weeks, except in mer- 
 cantile contracts, in which it was construed to mean 
 a calendar month. 
 
 In some of the States it is provided by statute 
 that the word " month" used in contracts, instru- 
 ments, and statutes shall be taken to mean calendar 
 months. 
 
 The tendency of the courts of this country is to 
 1 Eastman t>. Rapids, 21 Iowa, 590.
 
 EMPLOYMENT OF SCHOOL TEACHERS. 79 
 
 give the word the meaning of calendar month, 1 and 
 in contracts such as that of a teacher it is generally 
 so held, unless there is some statute to the contrary. 
 In New York it is provided by Rev. Stat., vol. ii., 
 chap, xix., tit. 1, sec. 4, p. 799, that where the word 
 '* month" occurs in any statute, act, deed, written 
 or verbal contract, or private instrument whatever, it 
 shall be held to mean a calendar month, unless other- 
 wise expressed. 
 
 The school month is defined by statute in many of 
 the States. 
 
 In Mississippi 9 and Wisconsin 3 a school month is 
 twenty days. 
 
 In Maine, in the absence of an agreement to the 
 contrary, a school month is four weeks, of five and a 
 half days each. 4 
 
 In Arizona, 5 Arkansas, 6 California, 1 Iowa, 8 Kan- 
 
 1 Sheets v. Selden, 2 Wallace, 177. And see Bishop on 
 Contracts, Sec. , 748, and cases cited in note. 
 
 5 Rev. Code of Mississippi, chap, xxxix., art. viii., sec. 
 2022. 
 
 3 Rev. Statutes of Wisconsin (1878), chap, xxvii., sec. 459. 
 
 4 Rev. Statutes of Maine, chap, xi., tit. ii., sec. 54. 
 
 5 Compiled Laws of Arizona (1877), chap, xxiii., p. 233, sec. 
 32. 
 
 6 Arkansas Digest, chap. 120, sec. 5429. 
 
 1 Hittell's Codes and Statutes of California, vol. i., Political 
 Code, art. xii., sec. 1697. 
 8 Code of 1873, sec. 1757.
 
 80 LAW OF PUBLIC SCHOOLS, 
 
 sas,' Louisiana, 4 Michigan,* Minnesota/ Missouri, 4 
 Nevada,* New Jersey, 1 and Ohio, 8 the school month 
 consists of four weeks, of five days each. 
 
 In Kentucky, 9 Illinois, 1 " and Pennsylvania, the 
 school month is twenty-two days. 
 
 No deduction from the teacher's wages can law- 
 fully be made on account of holidays, such as Christ- 
 mas, January 1st, July 4th, and the fasts and 
 thanksgivings appointed by the President of the 
 United States and the Governor of the State. 
 
 A contract to teach school does not imply that the 
 teacher is to sweep out, make fires, or do any janito- 
 rial work, nor would the fact that his predecessor 
 had done such work without extra compensation 
 make any difference. It must be part of the con- 
 
 1 Compiled Laws of Kansas, chap, xcii., art v., sec. 2. 
 1 Voorhies' Rev. Statutes of Louisiana, see. 1278, p. 332. 
 
 * Compiled Laws of Michigan, vol. i. chap, cxxxvi., sec. 
 24, p. 1194. 
 
 4 Statutes of Minnesota, 1878, chap, xxxvi., sec. 31. 
 
 * Myer's Supplement to Wagner's Statutes of Missouri, 
 chap, cxxiii., art. i., sec. 90, p. 426. 
 
 Compiled Laws of Nevuda, vol. ii., chap, cxii., sec. 50, 
 p. 207. 
 
 1 Rev. Statutes of New Jersey, p. 1077, sec. 44. 
 
 8 Rev. Statutes of Ohio, vol. i.. tit. iii., chap, ix., sec. 401fi. 
 
 General Statutes of Kentucky (1879), chap, xviii., art. 
 xl., sec. 4. 
 
 10 Statutes of Illinois, chap, cxxii., sec. 54. '
 
 EMPLOYMENT OF SCHOOL TEACHERS. 81 
 
 tract, or the teacher cannot be required to do such 
 work. 
 
 5. BREACH OF THE CONTRACT. 
 
 If the contract is broken in any manner by the 
 teacher, he of course forfeits his right to any further 
 compensation, and renders himself liable to dis- 
 missal. 
 
 If a teacher in a public school, although he has 
 been employed for a definite time, proves to be in- 
 competent and unable to teach the branches of in- 
 struction he has been employed to teach, either from 
 a lack of learning or from an utter want of capacity 
 to impart his learning to others, or if in any other 
 respect he fails to perform the obligations resting 
 upon him as a teacher, whether arising from the ex- 
 press terms of his contract or by necessary implica- 
 tion, he has broken the agreement on his part, and 
 the trustees are clearly authorized to dismiss him. 1 
 
 As has been stated, in treating of the conditions of 
 the contract, the law does not insist upon the highest 
 talents. But it does require the teacher to bring to 
 his work at least average abilities, and the usual in- 
 dustry and application to the discharge of his duties. 5 
 If he fails in this respect his contract is broken. 
 
 1 Crawfordsville . Hays, 42 Ind., 200 ; Bays v. The State, 
 6 Neb.. 167. 
 * Neville . School Directors, 36 111., 71.
 
 82 LAW OF PUBLIC SCHOOLS. 
 
 The school district on its part contracts to pay, at 
 the times fixed in the contract, such sums as the 
 teacher will be entitled to as salary. A failure on 
 the part of the district to make such payment gives 
 the teacher a right of action. The teacher is 
 peculiarly entitled to be paid for his important and 
 arduous services by those who employ him. 1 
 
 If a teacher is employed for a definite time, and 
 during the period of his employment the district 
 officers close the schools on account of the prevalence 
 of small-pox in the city, and keep them closed for 
 several months on that account, and the teacher con- 
 tinue ready to perform his contract, he is entitled to 
 full wages during such period. The act of God is 
 not an excuse for non-observance of a contract un- 
 less it renders performance impossible. If it merely 
 makes it difficult and inexpedient, it is not sufficient. 
 Although under such circumstances it is eminently 
 prudent to dismiss school, yet this affords no reason 
 why the misfortune of the district should be visited 
 the teacher.* 
 
 1 1 Bing., 357 ; 8 J. B. Moore, 368. 
 
 * Dewey v. Union School District, Supreme Court of Michi- 
 gan (April 30, 1880). Northwestern Reporter, vol. v., No. 5, p. 
 646.
 
 EMPLOYMENT OF SCHOOL TEACHERS. 83 
 
 6. REMEDIES. 
 
 The remedy of the board for failure of the teacher 
 is dismissal. 1 
 
 The teacher has one of two remedies action on the 
 contract,* or a writ of mandamus. 3 Mandamus, and 
 not an action for money had and received, is the 
 proper remedy to compel a clerk of the school dis- 
 trict to pay over money in his hands applicable to a 
 warrant issued in favor of a teacher for salary. The 
 funds are the funds of the district until he parts 
 with the custody of them. 4 
 
 A teacher is entitled to a writ of mandamus to 
 compel the trustees to pay arrears of salary due him. 6 
 
 He has his option to bring suit to recover the 
 money, or proceedings for a writ of mandamus to 
 compel its payment. And if an order has been 
 issued to him, and it remains unpaid, he may still 
 have his choice of remedies. The creditor of a cor- 
 
 1 Crawfordsville . Hays, 42 Ind., 200. 
 
 8 Puterbaugb v. Township Board, etc., 53 Mo., 472 ; Cascade 
 v. Lewis, 43 Pa. St., 318 ; Rolfe v. Cooper, 20 Me., 154. 
 
 8 Howard v. Bainford,3 Oreg., 565 ; Apgar v. Trustees, 34 
 N. J. L., 308, 8.C., 5 Vroora, 308 ; Cross v. District Township 
 of Dayton, 14 Iowa, 28 ; High's Ex. Legal Rem., sec. 351. 
 
 4 Howard v. Bamford, 3 Oreg., 565. 
 
 5 Apgar v. Trustees, 34 N. J. L. J. R, 308, or B.C. 5 Vroorn, 
 308.
 
 84 LAW OF PUBLIC SCHOOLS. 
 
 poration is not restricted to mandamus as his sole 
 remedy. 1 
 
 Where the school law allows the local directors to 
 employ a teacher, the latter may sue the township 
 board of education for breach of the contract.* 
 
 When the school trustees take away a teacher's 
 pupils from her school-room, although she had a 
 contract with them and was ready and willing to 
 teach the school,- they are nevertheless not individ- 
 ually liable to her. 3 
 
 But where the teacher is wrongfully dismissed on 
 charge of incompetency or any similar charge, he is 
 entitled to recover from the district his wages for the 
 balance of the term contracted for. 4 
 
 Where the teacher has performed services without 
 any contract, or without a proper contract, he is 
 nevertheless entitled to recover the reasonable value 
 of his services.* 
 
 It has been held that the declaration in an action 
 by the teacher for salary must contain an averment 
 that a certificate of qualification was exhibited to the 
 directors prior to the commencement of school.* 
 
 1 Cross v. The District Township of Dayton, 14 Towa. 2fl. 
 
 * Puterbaugh t>. Township Board, etc., 53 Mo., 472. 
 
 * Morrison v. McFarland, 51 Ind., 20fi. 
 
 4 Ewing . School District, etc., 2 Bradwell (111.), 458. 
 ' Offut r Bourgeois, 16 La. Ann., 163 ; Jones c. School Dis- 
 trict, 8 Kan., 862. 
 
 * Smith . Curry, 16 111., 147 ; Botkin Oslx>rue. 39 II! .
 
 EMPLOYMENT OF SCHOOL TEACHERS. 85 
 
 Mandamus will lie to compel the officers of a school 
 district to reinstate a teacher whom they have re- 
 moved without authority. 1 
 
 7. DEFENCES. 
 
 The fact that the teacher did not possess nor ex- 
 hibit the certificate of qualification required by law 
 will, in most of the States, defeat any recovery by the 
 teacher. 2 This requirement is always enforced with 
 great strictness, because it is the best safeguard the 
 public has against the impositions of' incompetent 
 teachers. It is true that incompetent teachers may 
 be dismissed, but always at the expense of confusion 
 and delay, and the school interests are too important 
 to be thus trifled with. 
 
 In an action by a teacher to recover for his services, 
 proof of his employment by the agent, and that he 
 rendered the services, makes a prima facie case, and 
 if the town would avail itself of the want of a cer- 
 
 609 ; Stevenson v. School Directors, 87 111., 255. But see 
 contra, Doyan v. School District, 35 Vt., 520. 
 
 1 Oilman v. Bassett, 33 Conn., 298. 
 
 Botkin v. Osborne, 39 111., 609 ; Smith v. Curry, 16 111., 
 147; Casey v. Baldridge, 15 111., 65; Harrison Township v. 
 Conrad, 26 Ind., 337 ; Dore v. Billings, 26 Me., 56 ; Baker v. 
 School District, 12 Vt., 192 ; Goodrich . Fairfax, 26 Vt., 115 ; 
 Welch v. Brown, 30 Vt., 586 ; Stevenson v. School Directors, 
 87111., 255.
 
 86 LAW OF PUBLIC SCHOOLS. 
 
 tificate it must show the fact, as it will be presumed 
 that the agent did his duty. 1 
 
 Although a teacher of a public school may not be 
 entitled to recover her wages by reason of having 
 neglected to obtain the certificate required by law, 
 yet the town alone is entitled to make that objection ; 
 and if money has been paid by the town to the school 
 agent, to be by him paid to the teacher, he will 
 hold it to her use, and cannot object to the want of a 
 certificate.* 
 
 But whether money placed in his hands by the 
 town was placed there absolutely for the use of the 
 school teacher is a question of fact for the jury. 3 
 
 Payment of the teacher's wages by the town to the 
 committee does not discharge the town's liability to 
 the teacher. 4 
 
 Incompetency, incapacity, or failure to perform 
 any of the obligations resting upon him as a teacher, 
 will authorize the dismissal of a public teacher, and 
 defeat any recovery for salary after such dismissal.* 
 
 As previously stated, the production of a teacher's 
 certificate casts the burden upon the school directors 
 
 1 Rolfe c. Cooper, 20 Me., 154, but contra, Stevenson . 
 School Directors, 87 111., 255. 
 
 Dore . Billiugs, 26 Me., 56. Id. 
 
 4 C'lark v. Great Burrington, 11 Pick. (Mass.), 260. 
 
 * Craw fords ville c. Hays, 42 Ind., 200 ; Bays r. The State. 6 
 Neb., 167.
 
 EMPLOYMENT OF SCHOOL TEACHERS. 87 
 
 to prove incompetency or neglect of duty, when they 
 rely upon either of these causes as grounds for dis- 
 missal. The certificate is prima facie evidence of the 
 teacher's qualification. 1 Incompetency of a teacher 
 is a question of fact to be found from the evidence. 4 
 Where in an action for wages it was pleaded, among 
 other defences, that the plaintiff was incompetent to 
 manage the school, that she was unreasonable in her 
 
 requirements of the pupils in the school, and was 
 
 * 
 uneven in her treatment of them, and partial and 
 
 abusive in her treatment of certain ones in her 
 school, and that she failed in all respects as a teacher 
 of said school, it was held that evidence of particular 
 instances of mismanagement in her government of 
 the school was admissible. 3 
 
 It has been held in an action to recover salary that 
 evidence that a majority of the voters in the district 
 were dissatisfied with the plaintiff, and that the 
 plaintiff and the prudential committee who employed 
 plaintiff knew this at the time the plaintiff was em- 
 ployed, is inadmissible. 4 
 
 Where an order on the treasurer was left at a 
 teacher's boarding-house in full for her services, 
 which order she took, but returned in two or three 
 
 1 Neville*. School Directors, 3$ III.. 71. 
 
 5 Ewing v. School District, etc., 2 Bradw. (III.), 458. 
 
 3 Holdun v. School District, 38 Vt., 529. 
 
 4 Nason v. School District No. 14, 20 Vt., 487.
 
 88 LXW OF PUBLIC SCHOOLS. 
 
 hours, saying that she did not accept it, it was held 
 that she lost none of her rights thereby. 1 
 
 The fact that a teacher who had been dismissed 
 carried off the school register, but returned it to the 
 school district clerk before bringing suit for wages, 
 will not defeat a recovery for wages." 
 
 A teacher cannot lawfully be paid for his services 
 until he has made a report to the superintending 
 committee, when required by law. 3 
 
 It is no defence to a teacher's suit to recover sal- 
 ary that the certificate was given to the teacher 
 without any actual examination, when the certi6cate 
 was obtained by him without fraud or the use of im- 
 proper arts on his part. 4 
 
 1 Richardson v. School District, 38 Vt., 603. 
 
 Wells t. School District. 41 Vt,, 353. 
 
 Moultonboroiigb v. Tuttle, 26 N. H. (6 Fost)., 470 ; Jewell 
 t>. Abiugton, 2 Allen (Mass.), 592. But contra, Crosby v. School 
 District, 35 Vt., 623. 
 
 4 George v. School District No. 8. 20 Vt., 495.
 
 SCHOOL REGULATIONS. 89 
 
 CHAPTER IX. 
 SCHOOL REGULATIONS. 
 
 1. BY WHOM MADE. 2. BY WHOM ENFORCED. 
 3. REGULATIONS AS TO ADMISSION. 4. REGULA- 
 TIONS AS TO ATTENDANCE. 5. REGULATIONS AS 
 TO THE USE OF THE BlBLE, ETC. 6. REGULATIONS 
 AS TO STUDIES. 7. REGULATIONS AS TO CONDUCT, 
 ETC. 8. GENERAL PRINCIPLE. 
 
 1. BY WHOM MADE. 
 
 IN many of the States the statutes creating the 
 boards of directors, trustees, or committees, expressly 
 confer upon them the authority to make all needful 
 rules for the regulation of the schools under their 
 care and control. 1 And the right to do so is un- 
 doubtedly to be implied where the statute gives the 
 board the control and custody of the schools.* 
 
 1 Burdick v. Babcock, 31 Iowa, 562 ; Iowa Code of 1873, sec. 
 1734 ; Sewell . Board of Education, 29 Ohio St., 89 ; Morrow 
 . Wood, 35 Wis.,59; Donahoo t>. Richards, 38 Me., 376; 
 Donahoe, prochein ami, v. Richards et al., 38 Me., 379. 
 
 2 Board of Education of Cincinnati v. Minor, 23 Ohio St., 
 211 ; Ferriter et al. v. Tyler etal., 48 Vt., 444 ; Spear v. Cum- 
 mings, 23 Pick., 224 ; The People . Easton, 13 Abb. (N.Y.), 
 Pr. N. 8., 159.
 
 90 LAW OF PUBLIC SCHOOLS. 
 
 While the principal or teacher of a public school is 
 subordinate to the school board, or board of educa- 
 tion of his city or district, and must enforce regula- 
 tions adopted by it for the government of the school, 
 and execute its lawful orders in that behalf, yet, in 
 matters concerning which the board has remained 
 silent, he has authority, as in loco parentis, to enforce 
 obedience to his lawful commands, subordination, 
 civil deportment, respect for the rights of other 
 pupils, and all obligations inherent in every school 
 system, and constituting the common law of the 
 school, which every pupil is presumed to know. In 
 a proper case, and when not deprived of the power by 
 the affirmative action of the board, such teacher has 
 the inherent authority to suspend a pupil from the 
 school ; though such suspension, with the reasons 
 therefor, should be promptly reported to the board. ' 
 
 2. BY WHOM ENFORCED. 
 
 Since the regulations are made for the government 
 of the school, and the school is under the immediate 
 control and supervision of the teacher, the execution 
 of the rules and orders of the directors necessarily 
 devolves upon the teacher, and in the execution of 
 
 1 State . Burton, 43 AVis., 150 ; Guernsey t>. Pitkin, 32 Vt., 
 224 ; Lander t>. Scaver, 32 Vt., 114 ; Ward v. Flood, 48 Cal. 
 30.
 
 SCHOOL REGULATIONS. 91 
 
 proper rules he is not liable for any damages that 
 ensue. 1 
 
 3. REGULATIONS AS TO ADMISSION. 
 
 Questions sometimes arise in respect to the 
 authority of teachers and directors to refuse admis- 
 sion to the free public schools under certain circum- 
 stances. 
 
 A principal of a public graded school may refuse a 
 child admission as a pupil, provided such child has 
 not education sufficient to enter the lowest grade of 
 such school. 9 
 
 Persons residing out of the State cannot send their 
 minor children into it, and by any method give them 
 a domicile in the State which shall entitle them to 
 acquire an education in the public schools. 3 
 
 Nor can parents entitle their children to the bene- 
 fits of the common schools of an adjoining district 
 by binding the children out as apprentices in such 
 district for the sole purpose of sending them to 
 school there. They would be trespassers and liable 
 in damages to the district. 4 
 
 1 Sewell v. Board of Education, 29 Ohio St. , 89 ; Guernsey 
 v. Pitkin, 32 Vt, 224 ; State . Burton, 45 Wis., 150. 
 
 2 Ward v. Flood, 48 Cal., 36 ; Trustees, etc., v. The People 
 exrel, etc., 87 111., 303. 
 
 3 Wheeler v. Burrow, 18 Ind.. 14. 
 
 4 School District v. Bragdon, 23 N. H. (3 Fost.), 507.
 
 92 LAW OF PUBLIC SCHOOLS. 
 
 Neither the teacher nor school board has authority 
 to make any discrimination between children of dif- 
 ferent races. Persons of African descent cannot law- 
 fully be denied admission to the common schools, 
 and in most of the States they cannot be compelled 
 to attend separate schools. 1 
 
 1 Dove v. Independent School District, etc., 41 Iowa, 689 ; 
 Smith v. Directors, etc., 40 Iowa, 518 ; Clark t. Board of Di- 
 rectors, etc., 24 Iowa, 200 ; Chase v. Stephenson, 71 111., 383 ; 
 People?. Board of Education, 18 Mich., 400; State v. South- 
 meyer. 7Nev., 342 ; Stater. Cincinnati, 19 Ohio, 178 ; Stewart 
 t>. Southard, 17 Ohio, 402. See also, Civil Rights Bills. Hev. 
 Statutes of United States, 2d ed., title xxiv., and sec. 5507, 
 chap, vii., title Ixx. ; Slaughter House Cases, 1 Woods, 21 ; 
 Slaughter House Cases, 10 Wallace, 36 ; Coger v. Northwestern 
 Packet Co., 37 Iowa, 145. For cases holding that to require 
 colored children to attend separate schools equally ns good, is 
 not an unjust discrimination and not unlawful, see Ward t>. 
 Flood, 48 Cal., 36 ; Cory v. Carter, 48 Ind., 827 ; People t>. 
 Easton, 13 Ahb. (N.Y.), Pr. N. S., 159 ; State t>. McCunn. 21 
 Ohio St., 198. and Dallas v. Fosdick, 40 How. Pr.. 249. The 
 following extract from the opinion in the case of Clark v. Board 
 of Directors, etc., 24 Iowa, 206, will amply repay n perusal : 
 
 " That the board of directors is clothed with certain discre- 
 tionary powers as to the establishment, maintenance, and man- 
 agement of schools within its district cannot be denied. Doubt- 
 less the board may, in its discretion, flx the boundaries within 
 which children must reside, in order to be entitled to admission 
 to a certain school ; or may fix the grade of each school, and 
 require certain qualifications, or proficiency in studies, or tlie 
 like, before any pupil shall be entitled to admission therein.
 
 SCHOOL REGULATIONS. 93 
 
 Mandamus will lie to compel the admission of a 
 child so excluded, and, although the proceedings are 
 
 " But this discretion is limited by the line which fixes the 
 equality of right in all youths between the ages of live and 
 twenty-one years. . . . It is not competent for the board 
 of directors to require the children of Irish parents to attend 
 one school and the children of German parents another ; the 
 children of Catholic parents to attend one school and the chil- 
 dren of Protestant parents another. And if it should so hap- 
 pen that there be one or more poorly -clad or ragged children in 
 the district, and public sentiment was opposed to the inter- 
 mingling of such with the well-dressed youths of the district in 
 the same school, it would not be competent for the board of 
 directors, in their discretion, to pander to such false public 
 sentiment, and require the poorly-clothed children to attend a 
 separate school. 
 
 " The term ' colored race ' is but another designation, and in 
 this country but a synonym for African. Now it is very clear 
 that if the board of directors are clothed with a discretion to 
 exclude African children from our common schools, and re- 
 quire them to attend (if at all) a school composed wholly of 
 children of that nationality, they would have the same power 
 and right to exclude German children from our common 
 schools, require them to attend (if at all) a school composed 
 wholly of children of that nationality, and so of Irish, French, 
 English, and other nationalities, which together constitute the 
 American, and which it is the tendency of our institutions and 
 policy of the government to organize into one harmonious 
 people, with a common country, and stimulated with the com- 
 mon purpose to perpetuate and spread our free institutions for 
 the development, elevation, and happiness of mankind."
 
 94 LAW OF PUBLIC SCHOOLS. 
 
 for the benefit of the child, the father is the proper 
 party to make the application for the writ, he being 
 the child's natural guardian, and charged with his 
 education. 1 
 
 The legally appointed guardian of such minor may 
 also procure a writ for the same purpose. 
 
 4. REGULATIONS AS TO ATTENDANCE. 
 
 It is competent for a board of school directors to 
 provide, by rule, that pupils may be suspended from 
 school if they shall be absent or tardy, except for 
 sickness or other unavoidable cause, a certain number 
 of times within a fixed period.* 
 
 "Any rule of the school, not subversive of the 
 rights of the children or parents, or in conflict with 
 humanity or the precepts of divine law, which tends 
 to advance the object of the law in establishing 
 public schools, must be considered reasonable and 
 proper. It requires but little experience in the in- 
 struction of children and youth to convince any one 
 that the only means which will assure progress in 
 their studies is to secure their attention the appli- 
 cation of the powers of their minds to the studies in 
 which they are instructed. Unless the pupil's mind 
 is open to receive instruction, vain will be the effort 
 of the teacher to lead him forward in learning. 
 
 1 People v. Board of Education, etc., 18 Mich., 400. 
 * Burdick . Babcoek, 31 Iowa, 002.
 
 SCHOOL REGULATIONS. 95 
 
 " This application of the mind in children is 
 secured by interesting them in their studies. But 
 this cannot be done if they are at school one day and 
 at home the next if a recitation is omitted or a les- 
 son left unlearned, at the whim or convenience of 
 parents. In order to interest a child, he must be 
 able to understand the subject in which he is in- 
 structed. If he has failed to prepare previous les- 
 sons, he will not understand the one which the 
 teacher explains to him. . . . The rule requir- 
 ing constant and prompt attendance is for the good 
 of the pupil, and to secure the very objects the law 
 has in view in establishing public schools. 
 
 "It is therefore reasonable and proper. ... It 
 is required by the best interests of all the pupils 
 of the school. Irregular attendance of pupils not 
 only retards their own progress, but interferes with 
 the progress of those pupils who may be regular and 
 prompt. 
 
 " The whole class may be annoyed and hindered 
 by the imperfect recitations of one who had failed to 
 prepare his lessons on account of absence. The class 
 must endure and suffer the blunders, promptings, 
 and reproofs of the irregular pupil, all resulting from 
 failure to prepare lessons which should have been 
 studied when the child's time was occupied by direc- 
 tion of the parent in work or visiting. Tardiness is 
 a direct injury to the whole school.
 
 96 LAW OF PUBLIC SCHOOLS. 
 
 " The confusion of hurrying to seats, gathering 
 together of books, etc., by tardy ones, at a time 
 when all should be at study, cannot fail to greatly 
 impede the progress of those who are regular and 
 prompt in attendance. The rule requiring prompt 
 and regular attendance is demanded for the good of 
 the whole school. While it may be admitted that 
 absence and tardiness are acts committed out of 
 school hours, yet as- their effects and consequences 
 operate upon the school the pupils when assembled 
 for instruction they are therefore subject to con- 
 trol by rules for the government of the school. If 
 the effects of acts done out of school hours reach 
 within the school-room during school hours, and arc 
 detrimental to good order and the best interest of 
 the pupils, it is evident such acts may be forbidden. 
 Truancy is a fault committed away from school. 
 Can it be pretended that it cannot be reached for 
 correction by the school board and teachers ? 
 
 *' A pupil may engage in sports beyond school that 
 will render him unfit to study during school hours. 
 Cannot these sports be forbidden ? The view that 
 acts, to be within the authority of the school board 
 and teachers for discipline and correction, must be 
 done within school hours, is narrow and without 
 regard to the spirit of the law and best interest of 
 our common schools. It is in conflict, too, with 
 authority. See upon this point Lander v. Scavcr, 3;J
 
 SCHOOL REGULATIONS. 97 
 
 Vt., 114, and Sherman v. Inhabitants of Charles- 
 town, 8 Gush., 160. The doctrine we have above 
 endeavored to sustain is, in these cases, distinctly 
 announced. 
 
 " The rule in question, as we have shown, operates 
 directly upon the order of the school upon the 
 pupils when assembled for instruction. It promotes 
 efficiency of the school, and secures the progress of 
 the pupils in their studies. It is, therefore, a rule 
 for the government of the school, and must be re- 
 garded as proper and reasonable, and within the 
 authority of the school officers to prescribe and en- 
 force. . . . Again, it is said that the rules visit 
 upon the child punishment for the parent's offence. 
 That is, the child is kept from school through the 
 fault of the parent, and is punished for the act of the 
 parent in detaining him. ... If the good of 
 the children were to be considered only, there would 
 bo force in this argument ; but it is completely an- 
 swered by the consideration that the parent's act is 
 an injury to the whole school. . . . The child, 
 through no fault of his own, or of his patents, may 
 be afflicted with a contagious disease, yet, as the good 
 of other pupils demand it, he may be for that reason 
 forbidden attendance at school. Spear v. Cum- 
 mings, 23 Pick., 225. . . . Tlie good of the 
 whole cannot be sacrificed for the advantage of one 
 pupil, who has an unreasonable father. Upon the
 
 98 LAW OF PUBLIC SCHOOLS. 
 
 parent must rest the great responsibility of depriving 
 his child of the opportunities of education, which 
 the laws of the State so generously offer. If the ed- 
 ucation of children were compulsory upon parents, 
 who could be reached by proper penalties, as for an 
 offence, for failure to send their children to school, 
 in that case the child could be relieved from the 
 hardship of expulsion, and the parent made re- 
 sponsible for his acts in detaining him from school. 
 
 " As the law now is, no other means can be de- 
 vised for enforcing the rule requiring regular and 
 prompt attendance, than the penalty of expulsion." ' 
 
 In the case of James Ferriter et al. v. J. M. Tyler 
 et al., in the Supreme Court of Vermont,* the de- 
 cision in which contains another exhaustive discus- 
 sion of the power of the directors to prescribe the 
 hours of attendance, etc., the complainants were 
 members of tho Catholic church in the village of 
 Brattleboro'. On June 4th, 1875, the priest of said 
 church, acting for the complainants, sent to the re- 
 spondents, who were the prudential committee of 
 that school district, a request that the children might 
 be excused from attendance at school on all holy 
 days, and especially on that day, it being Holy Corpus 
 Christi day.* 
 
 1 Per Beck, J., in Burdick n. Bubcock, 31 Iowa, 502. 
 
 1 Ferriter et al. r>. Tyler et al., 48 Vt., 444. 
 
 1 The most splendid festival of the Church of Rome. It was
 
 SCHOOL REGULATIONS. 99 
 
 The committee replied that the request could not 
 be granted, as it would involve closing some of the 
 schools and greatly interrupting others. It further 
 appeared that about sixty Catholic children, by direc- 
 tion and command of their parents, were kept from 
 school to attend religious services on the 4th of 
 June, 1875, being, as stated in the bill, "Holy Cor- 
 pus Christi" day. All, or nearly all, applied either 
 that afternoon or next morning, and were told by 
 the committee that, as they had absented themselves 
 without permission, and in violation of the rules of 
 the schools, which they well understood, they could 
 not return without an assurance from their parents 
 or their priest that in future they would comply 
 with the rules of the schools, at the same time assur- 
 ing the children and many of their parents, and also 
 the priest, that if the schools would not be again in- 
 terrupted in like manner they would gladly admit 
 said children to them ; that the priest and parents 
 refused, saying they claimed as a matter of right that 
 they might take their children from the schools on 
 all days which they regard as holy days. The bill 
 asked an injunction to restrain the respondents from 
 
 instituted in 1264, in honor of the Consecrated Host, and with 
 u view to its adoration, by Urban IV., who appointed for its 
 celebration the Thursday after the festival of the Trinity, and 
 promised to all the penitent who took part in it indulgence for 
 a period of from forty to one hundred days.
 
 100 LAW OF PUBLIC SCHOOLS. 
 
 preventing the admission of the children to the 
 schools. 
 
 The court below dismissed the bill, and the 
 Supreme Court, Barrett, J., delivering the opinion, 
 affirmed the decree dismissing the bill. 
 
 Judge Barrett places the decision upon the ground 
 taken in the Iowa case previously quoted from viz.. 
 That it is the right of the directors of the public 
 schools to prescribe the hours of attendance of the 
 pupils, to make a proper system of punishments, etc. 
 
 In so doing the public rights and convenience 
 must govern, without regard to the wishes, con- 
 venience, or private preferences of parents or others. 
 
 This rule applies to the attendance of children on 
 public or private religious worship on week-days dur- 
 ing the prescribed hours of school. Such purpose is 
 no excuse for the violation of a rule of school. The 
 following is quoted from the opinion : " All are sub- 
 jected alike to the law and its administration. The 
 Methodist, who regards his camp-meeting as de- 
 manding as much of his conscience as the Episco- 
 palian does his Christmas or Lent ; the Episcopalian, 
 who regards the feast and fast days of his church as 
 demanding as much of his conscience as the Catholic 
 does his holy " Corpus Christi" ; the Congregation- 
 alist, and Presbyterian, and Baptist, and other sects, 
 who care for none of these things, and whose prayer- 
 meetings and protracted meetings demand as much 
 of their consciences as in the case of those before
 
 SCHOOL REGULATIONS. 101 
 
 named, and the man of no preference and no re- 
 ligion all and all their children are subjected alike 
 to the school laws and to their administration. 
 
 " Let it be granted that parents and others may, 
 upon their own respective reasons, control the at- 
 tendance of the scholars, as against the official right 
 of the committee in that behalf, and practically the 
 ground of system and order and improvement has 
 no existence. For the parents and guardians of the 
 scholars may each on his own motion, and on his 
 own notions, withhold their respective scholars from 
 the schools. In this respect, so far as its effect on 
 the schools is concerned, it makes no difference 
 whether the occasion and motive involve conscience, 
 will, whim, or the pocket." ' 
 
 In Spear v. Cummings, Chief Justice Shaw says : 
 " The law provides that every town shall choose a 
 school committee, who shall have the general charge 
 and superintendence of all the public schools in such 
 towns," and that "this includes the power of de- 
 termining what pupils shall be received and what 
 pupils rejected. The committee may for good cause 
 determine that some shall not be received, as, for in- 
 stance, if infected with any contagious disease, or if 
 the pupil or parents shall refuse to comply with reg- 
 ulations necessary to the discipline and good man- 
 agement of the school." 4 
 
 1 Ferriter et nl. v. Tyler el al., 48 Vt, 444. 8 23 Pick., 224.
 
 102 LAW OF PUBLIC SCHOOLS. 
 
 A rule barring the doors of school-houses against 
 little children coming from great distances in the 
 winter, for being a few minutes tardy, is unreason- 
 able and unlawful, as being in its practical operation 
 little less than wanton cruelty. 1 
 
 5. REGULATIONS AS TO THE USE OF THE BIBLE, 
 ETC. 
 
 Perhaps no other question treated of in this vol- 
 ume has excited the interest, alarmed the under- 
 standings, or aroused the feelings of the people to 
 such an extent as the question whether the Bible 
 should be read in our public schools or excluded 
 therefrom. 
 
 It must be borne in mind that the Constitution of 
 the United States goes only to the length of ordain- 
 ing that Congress shall make no law respecting an 
 establishment of religion or prohibiting the free ex- 
 ercise thereof. 9 
 
 Mr. Story says of this article : ''It was under a 
 solemn consciousness of the dangers from ecclesiasti- 
 cal ambition, the bigotry of spiritual pride, and the 
 intolerance of sects, exempliOed in our domestic as 
 well as in foreign annals, that it was deemed advisable 
 to exclude from the national government all power 
 to act upon the subject. The situation, too, of the 
 
 1 Thompson v. Beaver, 63 111., 353. 
 * Article 1, Amendments.
 
 SCHOOL REGULATIONS. 103 
 
 different States equally proclaimed the policy as well 
 as the necessity of such an exclusion. 
 
 " In some of the States Episcopalians constituted 
 the predominant sect ; in others, Presbyterians ; in 
 others, Congregationalists ; in others, Quakers ; and 
 in others, again, there was a close numerical rivalry 
 among contending sects. It was impossible that 
 there should not arise perpetual strife and perpetual 
 jealousy on the subject of ecclesiastical ascendancy, 
 if the national government were left free to create a 
 religious establishment. 
 
 "The only security was in extirpating the power. 
 But this alone would have been an imperfect 
 security, if it had not been followed up by a declara- 
 tion of the right of the free exercise of religion, and 
 a prohibition (as we have seen) of all religious tests. 
 Thus the whole power over the subject of religion is 
 left exclusively to the State governments, to be acted 
 upon according to their own sense of justice and the 
 State constitutions ; and the Catholic and the Prot- 
 estant, the Calvinist and the Armenian, the Jew and 
 the infidel, may sit down at the common table of the 
 national councils, without any inquisition into their 
 faith or mode of worship." (Story on the Consti- 
 tution, sec. 1879.) 
 
 No inhibition is laid upon the States, but by the 
 compacts under which some of the newer States were 
 admitted into the Union they were required to pro-
 
 104 LAW OF PUBLIC SCHOOLS. 
 
 vide by an ordinance irrevocable, without the consent 
 of the United States and the people of the State, 
 that perfect toleration of religious sentiment shall be 
 secured. Apart from these few exceptions, it is left 
 entirely optional with the States to pass any law re- 
 specting religion not inconsistent with the constitu- 
 tion of the State by which such law is adopted. The 
 State constitutions, however, contain the same prin- 
 ciple, but differently expressed. No general rule can 
 be laid down which shall apply with critical accuracy 
 to each of the States. But it is safe to say, from an 
 examination of the State constitutions, that they do 
 not go to the length of ostracizing the Bible, and do 
 not necessarily exclude the Bible from the public 
 schools. A stranger to our institutions might 
 reasonably infer, from much of the public discussion 
 of the question, that our public schools are hotbeds 
 of sectarian religion, in which the consciences of 
 some of the children are continually suffering vio- 
 lence and persecution. Such a thing as sectarian 
 teaching, or the teaching of any religion as religion, 
 or of any irreligion, is in fact unknown to the 
 public-school system. 
 
 It is the custom in. many of the public schools to 
 open the exercises of the day with reading a few 
 verses of the Bible without note or comment. 
 In some of the large cities this custom has been 
 abandoned by the school boards. The whole sub-
 
 SCHOOL REGULATIONS. 105 
 
 ject is usually left to the discretion of the board of 
 directors, as are other rules prescribing studies, 
 etc. 
 
 Where the law leaves such a discretion with the 
 board, as it generally does, the courts have refused to 
 restrain, coerce, or interfere with such discretion. 
 No court of last resort has ever held that a rule 
 adopted by a public-school board, requiring that the 
 Bible should be read in the schools under its charge, 
 is unconstitutional. On the contrary, it has been 
 held by the highest courts in several of the States 
 that such a rule is entirely proper and not unconsti- 
 tutional. 1 
 
 It has been decided that a rule requiring every 
 pupil to read a particular version of the Holy Bible, 
 though it may be against the conscience of some to 
 do so, violates neither the letter nor the spirit of the 
 constitution of Maine." 
 
 It was held in Massachusetts that a school com- 
 mittee of a town has the legal power to pass a rule 
 requiring a school to be opened by reading from the 
 Bible and prayer every morning, and that each child 
 shall bow the head during such prayer, and that any 
 pupil shall be excused from bowing the head whose 
 parents request it ; and where any pupil refuses to 
 obey the rule, and his parents refuse to request that 
 
 1 Cooley on Torts, 289. 
 
 J Donnhoe c. Richards, 38 Me., 376.
 
 106 LAW OF PUBLIC SCUOOLS. 
 
 he shall be excused, the committee may expel such 
 pupil from the school. 1 
 
 In 1870 arose the case of the Board of Education 
 of Cincinnati v. Minor, involving the question of 
 the right of the board to prohibit the reading of re- 
 ligious books, including the Holy Bible, in the pub- 
 lic sdiools of Cincinnati. The Superior Court of 
 that city granted a perpetual injunction restraining 
 the board from carrying out its prohibition. The 
 majority opinions were delivered by Judges Hagans 
 and Storer, and Judge Taft delivered a dissenting 
 opinion. The Board of Education appealed the cause 
 to the Supreme Court of Ohio, and that court in 
 1872 held that the management of the public schools 
 being under the exclusive control of directors, trus- 
 tees, and boards of education, the judicial power will 
 not direct what instruction shall be given, or what 
 books shall be read therein.* This case created great 
 interest, and the discussion in the Superior Court of 
 Cincinnati and in the Supreme Court of Ohio is per- 
 haps the most exhaustive discussion extant 011 the 
 subject. 
 
 The Supreme Court of Illinois has recently decided 
 a similar case. The suit was an action on the case 
 brought by Edward McCormick against Cora Burt 
 
 1 Spiller . Woburn, 12 Allen (Mass.).. 127. 
 ' Board of Education of Cincinnati t>. Minor, 23 Ohio St., 
 211.
 
 SCHOOL REGULATIONS. 107 
 
 and the directors of the school she was teaching, to 
 recover damages on account of his suspension by the 
 directors from the benefits of the school, for the non- 
 observance of a rule adopted by them for the govern- 
 ment of the school. 
 
 The rule provided that the teacher might read as 
 an opening exercise every morning, not occupying 
 more than fifteen minutes, a chapter from the King 
 James translation of the Bible. No one was re- 
 quired to be present at such exercise unless he chose 
 to do so, and while such exercise was being con- 
 ducted every pupil was required to lay aside his 
 books and remain quiet. 
 
 The plaintiff refused to obey the rule, and for the 
 non-observance of the rule, which he claimQd was 
 void as interfering with the religious convictions of 
 himself and his father, he was suspended from " all 
 the rights and privileges of said school until he 
 should express a willingness to comply with the 
 rule." 
 
 Section 48 of the Illinois school law makes it the 
 duty of the directors " to adopt and enforce all 
 necessary rules and regulations for the management 
 and government of schools ; ... to direct what 
 branches of study shall be taught, and what text-' 
 books and apparatus shall be used in the several 
 schools." The court held that under this section 
 the directors exercise judgment and discretion in the
 
 108 LAW OF PUBLIC SCHOOLS. 
 
 expulsion or suspension of a pupil for refusal to 
 obey proper rules and regulations, and that they are 
 not liable in damages for the expulsion or suspension 
 of a pupil, where they act in good faith, and not 
 wantonly or maliciously. 1 
 
 Thus the tendency of the ablest judicial decisions 
 is to view favorably those statutes which intrust the 
 control of the schools and the selection of text-books 
 and studies to the local school boards to be regu- 
 lated according to the wants of the community, and 
 where there is no statutory or constitutional pro- 
 vision to the contrary, and the general management 
 of the schools is intrusted to the various school 
 boards, such boards would, under the authorities, 
 have tjie right to prescribe, or to prohibit, the use of 
 the Bible and the Lord's Prayer. 
 
 Speaking on the subject of religious liberty and 
 equality, Mr. Cooley says : " But while thus careful 
 to establish religious freedom and equality, the 
 American constitutions contain no provisions which 
 prohibit the authorities from such solemn recogni- 
 tion of a superintending Providence in public trans- 
 actions and exercises as the general religious senti- 
 ment of mankind inspires and as seems meet in 
 Unite and dependent beings. Whatever may be the 
 
 1 McCormick t>. Burt, Supreme Court of Illinois, March 
 17lh, 1880. Reported in Northwestern Reporter, Illinois 
 Supplement, vol. i., No. 5, p. 340.
 
 SCHOOL REGULATIONS. 109 
 
 shades of religious belief, all must acknowledge the 
 fitness of recognizing in important human affairs the 
 superintending care and control of the great Gov- 
 ernor of the universe, and of acknowledging with 
 thanksgiving his boundless favors, at the same time 
 that we bow in contrition when visited with the pen- 
 alties of his broken laws. No principle of constitu- 
 tional law is violated when thanksgiving or fast days 
 are appointed ; when chaplains are designated for 
 the army and navy ; when legislative sessions are 
 opened with prayer or the reading of the Scriptures ; 
 or when religious teaching is encouraged by exempt- 
 ing houses of religious worship from taxation for the 
 support of the State government. Undoubtedly the 
 spirit of the Constitution will require, in all these 
 cases, that care be taken to avoid discrimination in 
 favor of any one denomination or sect ; but the 
 power to do any of these things will not be uncon- 
 stitutional simply because of being susceptible of 
 abuse." ' 
 
 In some of the States there are statutes concerning 
 the use of the Bible in the public schools. 
 
 In Massachusetts it is provided that the committee 
 shall require the reading of the Bible in the schools 
 without note or comment. 2 
 
 1 Cooley's Constitutional Limitations, 470. 
 * Supplement General Statutes of Massachusetts, chap. 
 Ivii., sec. 1.
 
 110 LAW OF PUBLIC SCHOOLS. 
 
 In New Jersey the statute makes lawful the read- 
 ing of the Bible and the use of the Lord's Prayer in 
 the public schools of that State. 1 
 
 In Indiana, 3 Iowa,' Louisiana, 4 and Mississippi, 1 
 it is enacted that the Bible shall not be excluded 
 from the public schools. 
 
 In Iowa and Louisiana it is added that no chil.l 
 shall be compelled to read it contrary to the wishes 
 of his parent or guardian. 
 
 In conclusion it may be laid down : 
 
 (1.) That under the constitutions of the American 
 States sectarian or denominational religious teaching 
 in the public schools is not only improper but un- 
 lawful. 
 
 ' (2.) That where a school board is charged with the 
 control and regulation of public schools and of the 
 studies and text-books used therein, it is proper and 
 lawful for such school board to prescribe the reading 
 of the Bible, without note or comment, as an ex- 
 ercise in such schools. 
 
 1 Rev. Statutes of New Jersey, p. 1081, sec. 65. 
 
 9 Statutes of Indiana, Rev. of 1876, vol. i., chap, ccxxiv., 
 sec. 167, p. 815. 
 
 Code of 1873, sec. 1764. 
 
 4 Voorbies' Rev. Statutes of Louisiana, sec. 1288, p. 338. 
 
 * Rev. Code of Mississippi, chap, xxxix., art. xiii., uec. 
 2048.
 
 SCHOOL REGULATIONS. Ill 
 
 6. REGULATIONS AS TO STUDIES. 
 
 A rule prescribed by a board of education, that a 
 pupil failing to come prepared with a required exer- 
 cise or with a reasonable excuse shall be suspended, 
 is a reasonable rule, such as the board has authority 
 to adopt. 1 
 
 A requirement by a teacher of a district school, 
 that the pupils studying grammar shall write Eng- 
 lish composition, is a reasonable rule, and refusal to 
 comply therewith, in the absence of a request from 
 the parents that he be excused therefrom, will justify 
 expulsion of the pupil from school.' 2 
 
 No parent can insist that his child shall be placed 
 or kept in particular classes, when by so doing 
 others will be retarded in their studies, or that his 
 child shall be taught studies not in the prescribed 
 course of the school, or be allowed to use a text-book 
 different from that in use in the school, or that he 
 shall be allowed to adopt methods of study that in- 
 terfere with other pupils in their studies. 
 
 If a study has no connection with the studies 
 which a pupil wishes to pursue, it can make no differ- 
 ence to the other pupils, or those in charge, 
 whether such pupil undertake that study or not, and 
 
 1 Sewell v. Board of Education, 29 Ohio St., 89. 
 8 Guernsey v. Pitkin, 32 Vt., 224 ; Sewell . Board of Edu- 
 cation, 29 Ohio St., 89.
 
 112 LAW OF PUBLIC SCHOOLS. 
 
 if such a study is interdicted by the pupil's parent 
 the child should be admitted to advanced standing, 
 along with his class or grade, if he passes a satisfac- 
 tory examination of the other studies in his class. 1 
 
 There are several cases which seem to hold that a 
 teacher cannot punish nor the directors or trustees 
 expel a pupil for refusing to pursue any study not 
 prescribed by law, and from which the parents or 
 guardian request that the child be excused. 4 
 
 But where the study from which the parent wishes 
 the child to be excused is one in which the child 
 must necessarily acquire some proficiency before it 
 can pursue other studies in a course, it may well be 
 said that none of the decisions above referred to 
 negative the idea that the child might be denied en- 
 trance to such advanced class. While parents may 
 have the right to say that their children shall not 
 pursua particular studies not prescribed by law, yet 
 the school must not be burdened and annoyed by 
 irregular study, and proficiency in one study may be 
 a requisite for admission to another of the same 
 course.* 
 
 1 Trustees of School, etc., . The People ex rel. Van Allen, 
 87111., 303. 
 1 Ruleson t>. Post, 79 111., 567 ; Morrow e. Wood, 35 Wis. 
 
 no. 
 
 1 Ward r. Flood. 48 Cal.. 38 ; Trustees of School t>. The 
 IVople ex rd. Van Allrn. 87 III., 303.
 
 SCHOOL REGULATIONS. 113 
 
 "Where such study is not connected with the 
 studies to be pursued, and proficiency in it is- not req- 
 uisite in order to pursue other studies in the same 
 course, then it seems the parents have a right to 
 prohibit such study, and the child cannot lawfully 
 be whipped, expelled, or refused advanced standing, 
 solely because of his refusal to pursue such study. 1 
 
 7. REGULATIONS AS TO CONDUCT, ETC. 
 
 The general school committee of a town has power 
 to exclude therefrom a child of immoral or licentious 
 character, though such character be not manifested 
 by any acts in the school-room. This was held in a 
 case in which there was no prescribed rule on the sub- 
 ject. Chief Justice Shaw says : " It seems to be admit- 
 ted, if not it could hardly be questioned, that for 
 misconduct in school, for disobedience to its reason- 
 able regulations, a pupil may be excluded. Why so ? 
 There is no express provision in the law (as it then 
 was) authorizing such exclusion ; it results by neces- 
 sary implication from the provision of law requiring 
 good discipline. It proves that the right to attend is 
 not absolute, but one to be enjoyed by all on reason- 
 able conditions." Again, " But the court are of 
 opinion . . . that a power is vested in the gen- 
 eral school committee, or the master with their ap- 
 
 1 Trustees of Schools, etc., v. The People, etc., 87 111., 803 -, 
 Ruleson v. Post, 79 111., 567 ; Morrow v. AVood, 35 Wis., 59.
 
 LAW OF PUBLIC SCHOOLS. 
 
 probation and direction, to exclude a pupil . . . for 
 good and sufficient cause." ' 
 
 It is undoubtedly true that trustees or committees 
 have the power, and it is their duty, to dismiss or 
 exclude a pupil from their school when, in their 
 judgment, it is necessary for the good order and 
 proper government of the school so to do.* 
 
 They may do so to prevent a pupil from bringing 
 contagion into a school. 3 
 
 It has even been held that the teacher may, when 
 necessary to maintain proper discipline in school, ex- 
 pel a pupil, and if the prudential committee insist 
 upon the return of such scholar to school when his 
 presence would be fatal to the maintenance of disci- 
 pline, the teacher may lawfully quit the school and 
 yet recover wages up to the time she quit. 4 
 
 But the case in which this was decided was an 
 aggravated one, and the decisions of other States do 
 not warrant the teacher in going so far. It is better 
 merely to suspend the pupil, and report the matter to 
 the board for such further action as may seem fit. 
 
 The school authorities have a right to exclude from 
 
 1 Sherman z>. Charlestowii, 8 Gushing, 160 ; Peck r. Smith, 
 41 Conn., 442. 
 Stephenson t>. Hall etal., 14 Barb., 222. 
 
 3 Spear*. Cummings, 23 Pick., 22.->. 
 
 4 Scott v. School District No. 2 in Fairfax, 46 Vt., 452. And 
 see The State t>. Williams, 2? Vt., 755.
 
 SCHOOL REGULATIONS. 115 
 
 their grounds or buildings any one who enters there- 
 in to disturb the peace or interfere with the legiti- 
 mate exercises of the school. 1 
 
 Where a member of the district school committee 
 was present at the opening of school for the day, and 
 one of the larger boys of the school addressed him, in 
 the presence of other pupils, in a profane and insult- 
 ing manner, and such committeeman ordered the 
 boy out of the room, and, on his refusing, put him 
 out by force, using no more force than was necessary, 
 the committeeman was justified in so doing. 2 
 
 In most of the States there is a statute making it a 
 criminal offence for any one wilfully to disturb or in- 
 terrupt any school or religious meeting. 
 
 In case any one should wilfully disturb or inter- 
 rupt the school, it would be proper for the teacher 
 or any one cognizant of the facts to lodge a com- 
 plaint against the offender before a justice of the 
 peace. 3 
 
 8. GENERAL PRINCIPLE. 
 
 The general principle running through all of 
 these decisions is that the directors or trustees, as the 
 case may be, have the power and authority to pro- 
 
 1 Hughes v. Goodell, 3 Pittsb. L. J. (Pa.), 264. 
 
 2 Peck v. Smith, 41 Conn., 442. 
 
 3 State v. Leighton, 35 Me., 195 ; Township of Soldier v. 
 B;irrett, 47 Iowa, 111.
 
 11C LAW OF PUBLIC SCHOOLS. 
 
 mulgate and enforce such orders, rules, and regula- 
 tions as are not subversive of the legal rights of the 
 parents or children, or in conflict with humanity 
 and the principles of Divine law, and which tend to 
 advance the object of the law in establishing schools. 1 
 And that whatsoever has a direct and immediate 
 tendency to injure the school in its important in- 
 terests, or to subvert the authority of those in charge 
 of it, is properly a subject for regulation and disci- 
 pline, and this is so wherever the acts may be com- 
 mitted. 4 
 
 There is, nevertheless, a limit to the powers of the 
 school directors, and that limit is the needfulness or 
 reasonableness of the rule. 
 
 A board of directors having made a rule that no 
 pupil should, during the school term, attend a social 
 party, the plaintiff, a pupil of the school, violated 
 the rule, and was expelled from school for so doing, 
 it was held that under the law the board had power 
 to make needful rules for the government of pupils 
 while at school, but no power to follow them home 
 and govern their conduct while under the parental 
 eye ; and that in prescribing the rule it had gone be- 
 yond its powers.* 
 
 The Wisconsin court has thrown out a suggestion, 
 
 1 Rut-dirk v. Babcock, 31 Iowa, 562. 
 * Lander*. Seaver, 32 Vt., 114. 
 8 Drill e. Snodgrass. 66 Mo., 286.
 
 SCHOOL REGULATIONS. 117 
 
 which teachers may profitably heed, and that is that 
 the directors are the prime rule-makers for the 
 schools under their control. It is always well for a 
 teacher to suggest any matter of regulation to the 
 board where there is sufficient time to do so, and' 
 they should bear in mind that while they may, when 
 necessary, make rules in the absence of any estab- 
 lished by the board, yet their power is in this respect 
 limited, and the law comparatively unsettled. 1 
 
 Whenever it is necessary for a teacher to act at 
 once in order to maintain order and discipline, and 
 to protect the schools from the misconduct of a pupil, 
 the teacher is doing his duty and right by suspend- 
 ing such pupil, and he is justified in doing this with- 
 out waiting for an order of the directors. 2 
 
 Neither the teacher, with a legal certificate of qual- 
 ifications and lawfully employed, nor the board of 
 school directors or trustees, are liable in damages for 
 tort by reason of having expelled a child from 
 school, so long as they act in good faith. If they err 
 in good faith in the discharge of their duties they 
 are not liable. 3 
 
 1 State v. Burton, 45 Wis., 150 ; Morrow v. Wood, S5 Wis., 
 59. 
 
 2 State ex rel , etc., v. Burton, 45 Wis., 150. 
 
 3 Donahoe v. Richards et al., 38 Me., 376 ; Douahoe, etc., v. 
 Richards et al., 38 Me., 379 ; Sewell v. Board of Education, 29 
 Ohio St., 89; Spear . Cummings, 23 Pick., 224; Boyd v. 
 Blaisdell, 15 Ind., 73 ; Stephenson v. Hall, 14 Barb., 222. But
 
 118 LAW OF PUBLIC SCHOOLS. 
 
 It has been said that to make either liable there 
 must be malice, wilfulness, or an evil mind bent on 
 mischief, 1 but this may be inferred from the acts. 
 
 Nor is the teacher who suspends or expels a pupil 
 liable on an implied contract to teach. There is no 
 implied contract between teacher and pupil in our 
 public schools that the former shall teach the latter. 
 The only contract of the teacher is with the board 
 of directors employing him,* and he is accountable to 
 the board alone for his acts as teacher, unless he is 
 stirred by malicious motives, and thus renders him- 
 self amenable to the law. 
 
 The parent cannot limit the teacher's authority 
 over the pupil, nor deprive him of it except by re- 
 moving the child from the school. 
 
 where the child is entitled to go to the school, and the expul- 
 sion is wrongful, see contra, Roe t>. Deming, 21 Ohio Si., COO. 
 
 1 Drill v. Snodgrass, 00 Mo., 280 ; Commonwealth r. Seed, 
 5 Pa. L. J. R., 78. 
 
 Sluckey t>. Churchman, 2 Bradw. (111.), 584.
 
 COEPORAL PUNISHMENT. 119 
 
 CHAPTER X. 
 
 COEPORAL PUNISHMENT. 
 
 THE teacher who contracts to manage a public 
 school undertakes to do something more than merely 
 to prescribe lessons and hear recitations. The 
 teacher assumes to govern the school, to maintain 
 quiet and order in and about the school-house during 
 school hours, and to compel such conduct on the 
 part of the pupils as shall most conduce to their 
 own welfare and that of the school as a whole. 
 
 The authority to command this would be nugatory 
 if the teacher were not armed with some coercive 
 power. We accordingly find the law to be that a 
 school-teacher stands in loco parentis in relation to 
 the pupils committed to his charge, while they are 
 under his care, so far as to enforce obedience to his 
 commands, lawfully given in his capacity of school- 
 master, and he may therefore enforce them by 
 moderate correction. 1 
 
 t '.Hawkins, P. C., chap. 60, sec. 23 ; 2 Wbarton Am. Cr. 
 Law, sec. 1259 and note thereto ; Commonwealth . Seed, 3 
 Pa. Law J. Rep., 78 ; The State v. Pendergrass, 2 Dev. and 
 Bat. (Law), 865 ; Anderson v. The State, 3 Head (Tenn.), 455 -,
 
 120 LAW OF PUBLIC SCHOOLS. 
 
 He undoubtedly has the right to chastise his pupils 
 for any conduct which interferes with the order and 
 discipline of the school. 
 
 If, however, the teacher administer more than a 
 reasonable punishment, he becomes criminally liable, 
 and the absence of actual ill-will, vindictive feeling 
 and hatred, will not excuse him. Malice is essential, 
 but it may be inferred from the circumstances. Every 
 one is presumed to intend the natural and necessary 
 consequences of their acts. Therefore the intent of 
 the assault may be and should be determined from 
 the excessiveness of the battery which immediately 
 followed. 
 
 The teacher must exercise a reasonable discretion, 
 and must be governed as to the manner and severity 
 of the punishment by the nature of the offence, the 
 age, size, and apparent powers of endurance of the 
 pupil, and it is a question for the jury to say whether 
 the punishment is excessive. 1 
 
 State ex rd. Burpee . Burton, 45 Wis., 150: Johu Morris* 
 case, I. City Hall Recorder, 52-55 ; Cooper t. McJunkin, 4 
 Ind., 290. 
 
 1 Commonwealth v. Randall, 4 Gray (Mass.), 36 ; Cooper t. 
 McJunkin, 4 Ind., 290 ; Gardner t>. The State, 4 lud., 032 ; 
 Fitzgerald . Northcote, 4 F. & F., 656, and note p. 663 ; An- 
 derson v. The State, 8 Head (Tenn.), 455 ; Johnson et ux. v. 
 The State, 2 Humph., 283 ; Common wealth v. Blaker, 1 
 Brewster (Pa.), 311 ; John Morris' cuje, I. City H.ill Re- 
 corder, 52-55 ; Lander r. Seavcr. 82 Vt., 114 ; Hathaway r.
 
 CORPORAL PUNISHMENT. 121 
 
 A schoolmaster is not relieved from liability for 
 damages for the punishment of a pupil, which is 
 manifestly immoderate and unnecessary, by the fact 
 that he acted in good faith and without actual 
 malevolence, honestly thinking that the punishment 
 was proper and necessary both for the welfare of 
 the pupil and the discipline of the school. 1 
 
 There are some cases which hold, that in order to 
 render a teacher liable criminally the circumstances 
 must show strong reason to believe he was actuated 
 by bad, malevolent motives, using his legal authority 
 for the gratification of a mind bent on mischief.* 
 
 The weight of carefully considered decisions would 
 perhaps require the law to be stated thus : Malice is 
 necessary to make a teacher liable for the castigation 
 of a pupil, but the malice may be presumed from the 
 circumstances. If the punishment is inflicted with 
 unreasonable and immoderate violence the teacher is 
 liable, although no wicked, malicious intent existed. 
 Where the teacher acts wantonly for the gratification 
 
 Rice, 19 Vt., 102 ; Redden v. Gates, Supreme Court of Iowa, 
 October, 1879, reported in Northwestern Reporter, vol. ii. 
 (N. S ), No. 11, p. 1079. 
 
 1 Lander v. Seaver, 32 Vt., 114; Commonwealth v. Randall, 
 4 Gray (Mass.), 36 ; Anderson v. The State, 3 Head (Tenn.), 
 455. 
 
 Commonwealth v. Seed, 5 Pa. L. J. Rep.. 78; Slate v. 
 Penderrass, 2 Dev. & Bat. (Law), 365.
 
 122 LAW OF PUBLIC SCHOOLS. 
 
 of wicked, malevolent motives, he is liable, no matter 
 how moderate the punishment may be. 
 
 In a case in North Carolina, the defendant, a 
 school-teacher, was indicted for an assault and bat- 
 tery. After using mild measures toward a little gill 
 of six or seven years without success/ the teacher 
 whipped the child with a whip to such an extent as 
 to leave marks which passed away in a short time. 
 Two marks ulso were found to have existed, one on 
 the arm and one on the neck, Avhich appeared as if 
 made with a larger instrument, which also disap- 
 peared in a few days. The inferior Court instructed 
 the jury that " as the child was of tender years, if 
 they believed the defendant had whipped her, with 
 either a switch or other instrument, so as to produce 
 the marks described to them, she was guilty." On 
 appeal the Supreme Court held that this instruction 
 was erroneous, and that, under the circumstances, the 
 punishment was not in excess of the teacher's 
 authority. The opinion of the Supreme Court was 
 
 . * Commonwealth v. Seed, 5 Pa. L. J. Hep., 78 ; Lander r. 
 Seaver, 32 Vt., 114 ; Commonwealth r. Randall, 4 Gray 
 (Mass.), 30 ; Anderson t>. The State, 3 Head (Tenn.). 455 ; 
 Fit/.gcrald v. Northcotc, 4 F. & F., 603 n. ; Johnson ct its. r. 
 The State, 2 Humph., 283 ; Commonwealth r. Blaker, 1 P.rrw 
 ster (Pa.), 811 ; Hathaway r. Rice, 19 Vt., 102 ; 2 "\Vharton 
 ( r Law, sec. 1259. And see Starr t?. Litchfiuld, 40 Barb. 
 X. Y.), 543 ; State r. Williams, 27 Vt., 7.V5.
 
 CORPORAL PUNISHMENT. 123 
 
 delivered by Gaston, J., who said : "It is not easy 
 to state, with precision, the power which the law- 
 grants to schoolmasters and teachers with respect to 
 the correction of their pupils. It is analogous to 
 that which belongs to parents, and the authority of 
 the teacher is regarded as a delegation of parental 
 authority. One of the most sacred duties of parents 
 is to train up and qualify their children for becoming 
 useful and virtuous members of society. This duty 
 cannot be effectually performed without the ability 
 to command obedience, to control stubbornness, to 
 quicken diligence, and to reform bad habits ; and to 
 enable him to exercise this salutary sway, he is armed 
 with the power to administer moderate correction 
 when lie shall believe it to be just and necessary. 
 
 " The teacher is the substitute of the parent ; he is 
 charged in part with the performance of his duties, 
 and in the exercise of these delegated powers is in- 
 vested with his power. The law has not undertaken 
 to prescribe punishments for particular offences, but 
 has contented 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.
 
 124: LAW OF PUBLIC SCHOOLS. 
 
 " The welfare of the child is the main purpose for 
 which ];iin is permitted to be inflicted. 
 
 " Any punishment, therefore, which 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. But any correction, 
 however severe, which produces temporary pain only, 
 and no permanent ill, cannot be so pronounced, since 
 it may have been necessary for the reformation of 
 the child, and does not injuriously affect its future 
 welfare. 
 
 " We hold, therefore, that it may be laid down as a 
 general rule, that teachers exceed the limits of their 
 authority when they cause lasting mischief, but act 
 Avithin the limits of it when they inflict temporary 
 pain only. When the correction administered is not 
 in itself immoderate, and therefore beyond the 
 authority of the teacher, its legality or illegality 
 must depend entirely, AVC think, on the quo an i inn 
 with Avhich it Avas administered. 
 
 " Within the sphere of his authority, the master is 
 the judge when correction is required, ami of the de- 
 gree of correction necessary ; and, like all others in- 
 trusted Avith a discretion, he cannot be made penally 
 responsible for error of judgment, but only for Avick- 
 cdiu-ss of purpose. The best and wisest of mortals
 
 CORPORAL PUNISHMENT. 125 
 
 arc 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 execution. 
 His judgment must be presumed to be correct be- 
 cause he is the judge, and also because of the diffi- 
 culty of proving the offence, or accumulation of 
 'offences, 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. 
 
 " But the master may be punishable when he does 
 not transcend the powers granted, if he grossly abuse 
 them. If he use his authority as a cover for malice, 
 and, under the, pretext of administering correction, 
 gratify his own passions, the mask of the judge shall 
 be taken off, and he Avill stand amenable to justice 
 as an individual not invested with judicial power." 1 
 
 In an Iowa case it was held that " any punishment 
 with a rod which leaves marks or welts on the person 
 
 1 The State v. Pendergrass, SDev. &Bat., 365. This case is 
 one which perhaps states the extent of the teacher's authority 
 as fully as any extant. The rule making the teacher's liability 
 rest upon an actual wicked motive, although adhered to in the 
 case of Commonwealth v. Seed, 5 Pa. Law J. Rep., 78, is too 
 strong the weight of authority warrants only the rule that 
 malice is a necessary ingredient which may be expressly 
 shown, or inferred from the circumstances.
 
 12(5 LAW OF PUBLIC SCHOOLS. 
 
 of the pupil for two months afterward, or mnch less 
 time, is immoderate and excessive, and the court 
 would have been justified in so instructing the 
 jury." ' In the same case the following instruc- 
 tion was held not erroneous : " The legal objects and 
 purposes of punishment in schools are like the ob- 
 jects and purposes of the State in punishing the cit- 
 izen. They are threefold : First, the reformation and" 
 the highest good of the pupil ; second, the enforce- 
 ment and maintenance of correct discipline in 
 school ; and third, as an example to like evil-doers. 
 And in no case can the punishment be justifiable un- 
 less it is inflicted for some definite offence or offences 
 which the pupil has committed, and the pupil is 
 given to understand he or she is being punished for. 
 And if you find from the evidence that the punish- 
 ment in this case was inflicted upon the prosecutrix 
 without her knowing what she was being punished 
 for, then the punishment was wrongful on the part 
 of the defendant. Punishment inflicted when the 
 reason of it is unknown to the punished, is subver- 
 sive and not promotivo of the true objects of punish- 
 ment, and cannot bo justified/' In sustaining this 
 instruction the Supreme Court says : " The object of 
 all punishment must be to accomplish the purposes 
 specified in the instruction. 
 
 1 Per Secvers. J., in State of Iowa r. Mi/ner, 50 Iowa, 14~>.
 
 CORPORAL PUNISHMENT. 127 
 
 " The definition is an admirable one, and cannot, 
 we think, be improved. 
 
 " If the pupil does not know why the punishment 
 was inflicted, reformation cannot be expected there- 
 from. Just the contrary result might be expected. 
 Counsel mistake the meaning of the instruction. It 
 does not require the teacher to state to the pupil in 
 clear and distinct terms the offence for which he or 
 she is being punished. It only requires that the 
 pupil, as a reasonable being, should understand from 
 what occurred for what the punishment is inflicted." 
 
 The teacher must often act promptly to maintain 
 order, without waiting for the views of the directors 
 or trustees. 
 
 Where a pupil, in school hours, places himself in 
 the desk of the instructor, and refuses to leave it at 
 the request of the master, such pupil may lawfully 
 be removed by the master ; and for that purpose he 
 may immediately use such force, and call to his 
 assistance such aid from any other person, as may 
 be necessary to accomplish the object, without the 
 direction or knowledge of the superintending com- 
 mittee ; and the case is the same if the person is not 
 a pupil, but one having no right in the school. 4 
 
 When the relation of schoolmaster and pupil, or 
 any similar relation, is established in defence of a 
 
 1 The State of Iowa v. Mizner, 50 Iowa, 145. 
 9 Stevens v. Fassett, 27 Me., 260.
 
 128 LAW OF PUBLIC SCHOOLS. 
 
 prosecution for assault and battery, the legal pre- 
 sumption is that the chastisement was proper, and 
 this, to warrant a conviction, must be rebutted by 
 showing that it was excessive or without cause. 1 
 
 Where the relation of schoolmaster and pupil or 
 parent and child exists, and the chastisement is not 
 without cause, it is not the infliction of punishment 
 which constitutes the offence, but the excess ;* and 
 what shall be deemed excessive is not a question of 
 law for the court, but is a question of f;ict to be de- 
 termined by the jury. 
 
 In a criminal prosecution the offence must, of 
 course, be proven beyond a reasonable doubt, and if 
 there is any reasonable doubt that punishment :id- 
 ministered by a teacher was excessive, the tearluT 
 should have the benefit of the doubt. 
 
 It has also been held in a civil suit against the 
 teacher, that if there is any reasonable doubt that 
 the punishment was excessive, the teacher should 
 have the benefit of it.* 
 
 1 Anderson v. The State, 3 Head (Tenn.), 455 ; The State r. 
 IVixlcrgrass, 2 Dev. & Bat. (Law), 365 ; Commonwealth t. 
 Randall, 4 Gray (Mass.), 36. 
 
 1 Commonwealth r. liandall, 4 Gray (Mass.), 30 ; Johnson tt 
 nx. v. The State, 2 Humph., 2ftJ ; Anderson . The Si.-iic, 
 !i Head (Tenn.), 455 ; Lander r. Seaver, ;J2 Vt., 114 ; Hatha- 
 way . Rice, 19 Vt., 102 ; Commonwealth r. Blakcr, 1 Brew 
 ster, 311. 
 
 8 Lander v. Seaver, 32 Vt., 114.
 
 CORPORAL PUNISHMENT. ] 29 
 
 So far as the question of jurisdiction is concerned, 
 while there is a dearth of judicial decisions as to the 
 exact limits of the teacher's jurisdiction, yet the 
 spirit of the decisions is that the authority of the 
 schoolmaster extends over the person of the pupil 
 from the time the pupil arrives on the school 
 premises until it leaves, and over the school 
 premises both in and out of school hours. And also 
 that for conduct out of school hours and off the 
 school premises, in violation of a rule of the school, 
 and which conduct has a direct and immediate 
 tendency to injure the school or its discipline, the 
 authority attaches and the pupil may be punished 
 tlierefor. 1 But whatever punishment is to be ad- 
 ministered must be inflicted on the school premises. 
 
 Although a teacher has in general no right to chas- 
 tise a pupil for misconduct committed out of school 
 after the dismissal of school for the day, and the re- 
 turn of the pupil to his home, yet he may, on the 
 pupil's return to school, punish him for any mis- 
 behavior, though committed out of school, which has 
 a direct and immediate tendency to injure the school 
 or subvert the teacher's authority. This was held in 
 a case in which the pupil, a boy eleven years old, an 
 hour and a half after the school had closed for the 
 day, and when he was at his home, and engaged in 
 
 1 Lander v. Scavcr, 32 Vt., 114; Ilurd on Habeas Corpus, 
 p. 50.
 
 130 LAW OF PUBLIC SCHOOLS. 
 
 his father's sen ice, used saucy and disrespectful lan- 
 guage to the teacher in the presence of some of his 
 fellow-pupils. For this the teacher whipped the boy 
 next morning on his return to school. 
 
 The court, sitting in full bench, and upon argu- 
 ment and careful consideration, sustained the action 
 of the teacher, and in doing so used the following 
 language : " But where the offence has a direct ten- 
 dency to injure the school and bring the master's 
 authority into contempt, as in this case, when done 
 in the presence of other scholars and of the master, 
 and with the design to insult him, we think he has a 
 right to punish the scholar if he comes to school 
 again." 
 
 There was no prescribed rule in that respect, and 
 the,court passed directly upon the teacher's right to 
 maintain respect for his authority, even as against 
 nets done out of school which are directed against his 
 authority. 1 
 
 If a person who has attained majority voluntarily 
 attends school, creating the relation of teacher and 
 pupil, he thereby waives any privilege of age, and 
 subjects himself to like discipline with those who are 
 within the school age. Such pupil may bo punished 
 
 1 Lander t>. Seaver, 82 Vt , 114; Burdick v. Balrcock, .31 
 Iowa, 502. But as to the limit, see Murphy r. Board of Direc- 
 tors, etc., 30 Iowa, 4'29 ; Drill t>. Snodgrass, 60 Mo., 286.
 
 COUPOHAL PUNISHMENT. 131 
 
 for refractory conduct, provided the punishment be 
 reasonable under the circumstances. 1 
 
 It has been held in Wisconsin that a teacher was 
 not authorized to inflict corporal punishment upon a 
 child for the purpose of compelling it to pursue a 
 study which it was forbidden by its father to pursue. 
 
 In this caso, however, the teacher assumed the 
 right to control the child's studies, and there was no 
 rule of the school board requiring the pupil to pur- 
 sue the study which his father had forbidden. 2 It is 
 expressly stated in the opinion, that this decision is 
 not intended to interfere with the duties of the 
 school board in making and enforcing proper and 
 reasonable rules. 
 
 If the rules of a school prescribe certain studies, 
 and require attendance at particular hours., and the 
 parents may not excuse therefrom, yet the teacher 
 should not in such ease resort to whipping the pupil 
 for failure to pursue the studies or attend at the 
 hours fixed by the rules. The remedy in such case 
 is expulsion from the school. 3 
 
 In New Jersey corporal punishment is forbidden 
 by statute. 4 
 
 1 The State v. Mizner, 45 Iowa, 248 ; Stevens v. Fassclt, 27 
 Me., 2G6, 287. 
 8 Morrow v. Wood, 35 Wis. , 59. 
 
 3 The State of Iowa v. Mizner, 50 Iowa, 145. 
 
 4 Rev. Statutes of New Jersey, p. 1087, sec. 98.
 
 132 LAW OF PUBLIC SCHOOLS. 
 
 Ill England it has been held, that where a school- 
 master wrote to a parent and obtained the parent's 
 consent to beat the pupil severely to subdue his 
 alleged obstinacy, and the teacher beat the boy for 
 two hours and a half secretly in the night, and with 
 a thick stick, until the pupil died from the effects 
 of the beating, such teacher was guilty of man- 
 slaughter only, no malice having been proved. 1 
 
 R. t>. Elopley, 2 F. & F., 203.
 
 TABLE OF OASES CITED. 
 
 , The, 68. 
 
 Anderson v. The State, 119, 120, 121, 122, 128. 
 Angell v. McClellan, 68. 
 Apgar v. Trustees, 83. 
 Appeal of Barnes, 60. 
 Appointment of Viewers, 32. 
 Armand v. Dumas, 24, 30. 
 Armstrong v. Treasurer of Athens Co. , 24. 
 Athearn v. The Independent School District, etc., 74. 
 Attorney-General v. Ely, 39. 
 Augustin v. Eggleston, 36. 
 
 B 
 
 Bailey v. Ewart, 46. 
 
 Baker v. School District, 70, 85. 
 
 Baker v. Chambles, 53. 
 
 Bank of the Republic v. Hamilton, 24. 
 
 Batnhart v. Bodenhammer, 73. 
 
 Barr v. Deniston, 70, 72, 73. 
 
 Bartlett v. Kinsley, 63, 65. 
 
 Bassett v. Fish, 54. 
 
 Bays v. The State, 47, 81, 86. 
 
 Bayliss v. Pearson, 53. 
 
 Bellmeyer v. Independent District of Marshalltown, 52, 53 
 
 Bigelow v. Randolph, 54. 
 
 Blanchard v. School District, 71. 
 
 Boardman v. Hayne et al., 50, 53. 
 
 Board of Trustees v. Misenheimer, 56.
 
 134 TABLE OF CASES (I'll I. 
 
 Board of Education v. Minor, 89, 106. 
 
 Botkin v. Osborne, 70, 72, 84, 85. 
 
 Boyd . Blaisdell, 117. 
 
 Brings et al. v. Johnson County, 18, 22. 
 
 Bump v. Smith, 1C. 
 
 Burdick v. Babcock, 89, 94. 98, 110, 130. 
 
 Burton v. Fulton, 47, 48. 
 
 Carpenter v. Ely, 38. 
 Carson v. McPhetridge, 38. 
 Cascade r. Lewis, 67, 83. 
 Casey v. Baldridge, 70, 72, 85. 
 Chapin v. Hill, 58. 
 Chase v. Stephenson, 91. 
 Chrgaray v. Mayor, etc., 24, 26, 29. 
 Chegaray v. Jenkins, 24, 29. 
 Cincinnati College v. The State, 24, 25. 
 Clark v. Board of Directors, etc., 92. 
 Clark v. Great Harrington, 66. 
 Cleland v. Porter, 36. 
 Clinton School District's Appeal, 48. 
 Coger v. Northwestern Packet Co., 92. 
 Commissioners v. Brackenridge, 24. 
 Commonwealth v. Cluley, 37. 
 
 t>. Blaker, 120, 122, 128 
 
 t. Dedham. 18. 19. 
 
 t>. Randall, 120, 121, 122. 128. 
 
 . Seed, 118. 119, 120, 121, 123, 125. 
 
 . Sheffield, 18, 19. 
 Conover v. Cooper, 68. 
 Contested Election (Pa.), 38. 
 
 C(x>k v. Independent Dintrict of North McGregor, 74. 
 Cooper v. McJunkin, 119, 120. 
 Cory v. Carter, 92. 
 Cotton t>. Phillips, 57. 
 Crawfordsville t. Hays, 47, 81, 83. 86. 
 Crosby v. School District, 71, 88.
 
 TABLE OF CASES CITED. 135 
 
 Cross v. The District Township, etc., 53, 83, 84. 
 
 Curtis' Adm'rs v. Whipple, 15. 
 
 Cashing v. Inhabitants of Newburyport, 18. 
 
 D 
 
 Dallas v. Fosdick, 92. 
 
 Davis v. Boget et al., 59. 
 
 Delaware, The, 25. 
 
 Denniston t>. School District, 67. 
 
 Detroit, etc., v. Mayor, 25. 
 
 Dewey v. Union School District, 82 
 
 Dickey v. Hurlburt, 35. 
 
 District Township of Bluff Creek v. Ilardinbrook, 54. - 
 
 " " Hesper v. Independent District, etc., 35. 
 
 " " Taylor v. Morton, 55. 
 
 " Union v. Smith, 55. 
 
 Donahoe v. Richards, 47, 48, 105, 117. 
 Donahoe prochein ami v. Richards et al., 89, 117. 
 Dore D. Billings, 72, 85, 86. 
 Dorton v. Hearn, 61.^ 
 
 Dove v. Independent School District, etc., 92. 
 Doyan v. School District, 85. 
 Drittt). Snodgrass, 116, 118, 130. 
 
 E 
 
 Eastman v. Rapids, 78. 
 
 Ewing v. School District, etc., 84, 87. 
 
 Ferguson v. True and Walker, 50, 56, 70. 
 
 Ferriter et al. v. Tyler et al., 89, 98, 101. 
 
 Finch v. Cleveland, 70, 77. 
 
 Finch v. The Board of Education, 54. 
 
 Fitzgerald v. Northcote, 120, 122. 
 
 Fletcher v. Lincolnville, 65. 
 
 Foster v. Lane, 33.
 
 13G TABLE OF CASES CITED. 
 
 Q 
 
 Gardner . The State, 120. 
 Galbraith v. Black, 68. 
 George v. School District, 71, 88. 
 Gibson v. School District, etc., 51. 
 Gillis r. Space. 67. 
 Oilman c. Biissett, 85. 
 Godfrey v. Hays, 68. 
 Goodrich v. Fairfax, 70, 72, 85. 
 Grant r. Fancher, 67. 
 Greenbanks v. Boutwt- 11, 15. 
 Guernsey v. Pitkin, 90, 91, 111. 
 Gulick v. New, 38. 
 
 H 
 
 Hannibal, etc., R. R. Co. v Shacklett, 24. 
 
 Harris v. School District, 33. 
 
 Harrison v. Good, 62. 
 
 Harrison Township v. Conrad, 70, 72, 85. 
 
 Hart c. Plum, 24. 
 
 Harvey v. Irvin, 53. 
 
 Hathaway v. Rice, 120, 122. 128. 
 
 Hewitt v. Board of Education, 51. 
 
 Holden v. School District, 87. 
 
 llornbeck . Westerbrook, 33. 
 
 Horton v. Garrison and Hoffman. 67. 
 
 Howard v. Bamford, 83. 
 
 Hughes P. Goddell, 115. 
 
 Indianapolis v. McLean, 24, 29. 
 Indianapolis v. Sturtevant, 30. 
 
 J 
 
 Jackson v. Cory, 33. 
 Jackson v. Hampden, 70. 
 Jenkins v. Andover, 14, 18. 
 
 .li-nks r. S, h.wl D>lr;
 
 TABLE OF CASES CITED. 137 
 
 Jenness v. School District No. 31, 70. 
 
 Jenney v. Alden, 08. 
 
 Jewell V-. Abington, 88. 
 
 John Morris' Case, 119, 120. 
 
 Johnson et ux. v. The State, 120, 122, 128. 
 
 Jones v. Nebraska City, 7G. 
 
 Jones v. School District, 74, 84. 
 
 Judkins v. Hill, 37. 
 
 Juker v Commonwealth, 37. 
 
 K 
 
 Keller v. Chapman, 36. 
 Kendrick v. Farquhar, 24, 28. 
 Knowles v. Boston, 76. 
 
 Lander v. Seaver, 90, 116, 120, 121, 122, 128, 129, 130. 
 
 Lane v. School District, 49. 
 
 Lanier v. Gallatas, 36. 
 
 Lindsey v. Marshall, 5o. 
 
 Locust Ward Election, 36. 
 
 Long v . Fuller, 32. 
 
 Lord v. Poor, 68. 
 
 Love v. Moore, 47. 
 
 Lyon v. Adamson, 53. 
 
 M 
 
 Mann v. The Independent School District, etc., 75. 
 
 Manning v. District Township of Van Bureu, 51. 
 
 Marshall v. Donovan, 15. 
 
 McCormick v. Burt, 108. 
 
 McCutchen v. Windsor, 47, 76. 
 
 McKinney v. O'Connor, 36. 
 
 McLoud v. Selby, 66. 
 
 Merrick and others v. Inhabitants of Amherst and others, 18. 
 
 Merritt v. Farris, 35, 64. 
 
 Methodist Church v. Ellis, 24. 
 
 Miami County v. Brackeuridge, 24.
 
 138 TABLE OF CASES CITKJ). 
 
 Monachal! v. School District No. 1, 68. 
 Monticello Bank v. District Township, etc., 51. 
 Moore f. Beattie, 63. 
 Morris' Case, 119, 120. 
 Morrison v. McFarland, 47, 81. 
 Morrow v. Wood, 89, 112, 113, 117, 131. 
 Moultenborough v. Tuttle, 88. 
 Murphy v. Board of Directors, etc., 130. 
 
 N 
 
 Nason v. School District No. 14, 87. 
 
 Nazareth v. Commonwealth, 25. 
 
 Neville v. School Directors, 73, 75, 81, 87. 
 
 Newell T. School Directors, 52. 
 
 New Orleans c. St. Patrick's Hall Association, 80. 
 
 " " v. Lafayette Ins. Co., 30. 
 Nichols v. The School Directors, etc., 60. 
 Nightingale v. Withington, 6b. 
 Nixon v. Spencer, 68. 
 Northwestern University v. The People, 26. 
 
 
 
 Offut v. Bourgeois, 84. 
 Ohio v Treasurer of Liberty Township, 50. 
 O'Neal v. School ('oniiuij-cioners, 67. 
 Opinion of the Judge* (Me.), 15, 87. 
 
 Pace v. Jefferson County, 25, 29, 80. 
 Pacific H. It. Co. v. Cass County, 24. 
 Page v. Township Board, etc., 49. 
 Paul v. School District, 71. 
 IVck T. Smith, 50, 114, 115. 
 Peck ham c. School District, 32. 
 Peers c. Board of Education, 47, 49. 
 Pitfple v. Board of Education, 14, 92, 94.
 
 TABLE OF CASES CITED, 139 
 
 People v. Cicott, 38, 39, 40. 
 
 " . Clute, 37. 
 
 " v. Cook, 36, 39. 
 v. Easton, 89, 92. 
 
 " v. Ferguson, 39. 
 
 " v. Holden, 38. 
 
 " v. Kennedy, 39. 
 
 " v. McManus, 39. 
 
 " v. Matteson, 39. 
 
 " v. May worm, 39. 
 
 " v. Pease, 39. 
 
 " v. Roper, 24. 
 
 " v. Seaman, 39. 
 Perkins v. Wolf et al, 45, 73. 
 Person v. Chase, 68. 
 Philadelphia Association v. Wood, 15. 
 Piatt . The People, 36. 
 Pickett v. School District, 51, C9. 
 Pierce v. Cambridge, 28. 
 Platt v. Rice, 24. 
 Probasco v. Moundville, 24, 25. 
 Puterbaugh v. Township Board, etc., 67, 83, 84. 
 
 R 
 
 R. v. Hopley, 132. 
 Redden v. Gates, 121. 
 Richards v. Raymond, 18. 
 Richardson v. School District, 77, 88. 
 Robinson v. Dodge, 16. 
 
 v. The State, 70. 
 Roe v. Deming, 118. 
 Rolfe v. Cooper, 83, 86. 
 Ruleson v. Post, 20, 112, 113. 
 
 Saunders v. Haynes, 37. 
 
 Schofield v. Eighth School District, 60, 62.
 
 140 . TABLK OK CASES CITED. 
 
 School Commissioners v. Aiken, 66, 
 School Direciors v. Hart, 67. 
 
 " " D. Hudson, 75. 
 
 School District No. 8 v. Arnold, 01. 
 School District v. Athorton, 6.1. 
 
 v. Blukesh-e. 63, 64, 65. 
 
 " " o. Brngdon, 91. 
 
 " " v. Colvin, 76. 
 
 " " v. Macloon, 67. 
 
 " " v. Slough, 52. 
 
 " " v. Thompson, 67. 
 
 Scott v. School District No. 2 in Fairfax, 114. 
 Sewell v. Board of Education, 89, 111, 117. 
 Seymour v. Hartford, 24. 
 Sheets v. Seldeu, 79. 
 
 Sheffield School Township v. Andreas. 53. 
 Sheldon v. Centre School District, 15. 
 Sherman . Charlestown, 114. 
 Shoudy v. School Di rectors, 49. 
 Silvers. Cumminjfs, 67. 
 Sisters of Charity v. Detroit, 31. 
 Slaughter House Cases, 92. 
 Smith, v. Curry, 72, 84, 85. 
 
 " v. District Township of Knox, 47. 
 
 " v. Directors, etc , 92. 
 Spear v. Cumminjrs, 89, 114, 117. 
 Spencer v. Joint School District, etc., 61, 62. 
 Spiller v Woburn, 106. 
 Sprague v. Norway, 36. 
 Spring v. Wright, 50. 
 Starr v. Litchfield, 122. 
 State v. Hrrmond, 14. 
 
 " v. Burton. 00, 01, 117, 110. 
 
 " v. Boa], 37. 
 
 " v. Cincinnati, H'J. 
 
 " <c. Elizabeth, 25. 
 
 " v. (Hies, 37. 
 
 " v. Hulin, 66.
 
 TABLE OF CASES CITED. 
 
 State v. Lewis, 64. 
 
 " v. Leighton, 115. 
 
 " . Mason, 36. 
 
 " v. Mizner, 126, 127, 131. 
 
 " v. McCann, 92. 
 
 " v. Parker, 24. 
 
 " v. Pendergrass, 119, 121, 125, 128. 
 
 " v. Powell, 64. 
 
 " v. Ross, 24, 25, 27, 29. 
 
 " . Smith, 38. 
 
 " v. Southmeyer, 92. 
 
 " v. The Judges, etc., 37, 38, 40. 
 
 " v. Williams, 114, 122. 
 
 " v. Wilson, 24. 
 Steele v. Thatcher, 68. 
 Stepheuson . Hall et al., 114, 117. 
 Stevens v. Fassett, 71, 127, 131. 
 Stevenson v. School Directors, 67, 85, 86. 
 Stewart v. Southard, 92. 
 Stone v. Pulsipher, 68. 
 Stuart v. School District, etc., 16, 17, 50. 
 Stuckey v. Churchman, 118. 
 St. Mary's College v. Crowl, 24. 
 St. Peter's Church v. Board of Commissioner?, 28. 
 Sublett v. Bedwell, 37. 
 Sudbury v. Stearns, 37. 
 
 T 
 
 Talkington v. Turner, 39. 
 
 Taylor v. District Township of Otter Creek, 51. 
 
 " v. Township of Wayne, 51, 52. 
 Templin & Sons v. District Township of Fremont, 49. 
 The ^tna, 68. 
 The Delaware, 25. 
 
 The Northwestern University v. The People, 26. 
 The State v. Woolem, 36. 
 Third School District, etc., v. Gibbs, 37. 
 Thompson v. Beaver, 102.
 
 142 TABLE OF CASES CITED. 
 
 Townsbend . llagan et al. , 59. 
 
 Township Board of Education r. Hackman, 32. 
 
 Township of Soldier v. Barrett, 115. 
 
 Tnnubull v. White, 16. * 
 
 Trustees, etc., v. Osborne, 58. 
 
 " " D. Tatman, 66. 
 
 Trustees of Griswold College o. The State of Iowa, 24, 28. 
 Trustees of School, etc., v. The People ex rel. Van Allen, 91, 
 
 112, 113. 
 
 Vail r>. Beach, 24, 28. 
 
 w 
 
 Ward v. Flood. 90, 91. 92. 112. 
 
 " v. School District No. 15, 55, 56. 
 Washburn v. Commissioners, 25. 
 Washington University v. House, 24. 
 Weeks v. BatcheMer, 63. 
 Weir a. Diy, 58. 
 Welch v. Brown, 70, 72, 85. 
 Wells v. School District, 88. 
 Wesleyan Academy v. Wilbraham, 26. 
 Wharton v. School Directors, 67. 
 Wheeler . Burrow, 91. 
 Whipley v. McKune, 36. 
 Whiting . Earle, 68. 
 Whitmore v. Hogan, 66. 
 Williams t). School District, 15, 32. 
 Wolcott t>. Rickey et al., 68. 
 Wolf v. Independent School District, etc., 51. 
 Wood v. Inhabitants of Mfdfield, 76. 
 Wymau v. St. Louis, 24, 29.
 
 INDEX. 
 
 ARKANSAS. ' 
 
 School month, length of, in, 79. 
 ARIZONA. 
 
 School month, length of, in, 79. 
 BANCROFT, MR. 
 
 Remarks of, on the measures establishing public schools 
 
 in New England, 19. 
 BENTHAM, JEREMY. 
 
 On origin of property, 12. 
 BROUGHAM, LORD. 
 
 Famous speech, " The Schoolmaster is Abroad!" 13. 
 CALIFORNIA. 
 
 School month, length of, in, 79. 
 CERTIFICATE. 
 
 Teacher's certificate of qualifications, 70-73. 
 
 (See TEACHERS.) 
 CONDEMNATION OF SITES FOR SCHOOL-HOUSES. 
 
 (See SITES FOR SCHOOL-HOUSES.) 
 CONNECTICUT. 
 
 School-houses may be used temporarily for other than 
 school purposes in, 60, n. 2, 62. 
 
 CORPORAL PUNISHMENT. 
 
 Teacher may enforce reasonable commands by, 119. 
 
 Extent of teacher's authority, 1^0. 
 
 Teacher's liability for inflicting, 120-125, and 125, n. 1. 
 
 Malice essential, but may be inferred, 120. 
 
 Leaving marks for two months, 125, 126,
 
 144 INDEX. 
 
 CORPORAL PUNISHMENT. Continued. 
 Objects of punishment stated, 126. 
 Whether excessive is for the jury to decide, 128. 
 Teacher has benefit of a doubt, 128. 
 Extent of teacher's jurisdiction, 129. 
 Only to be inflicted on school premises, 129. 
 For conduct out of school, 129, 130. 
 Of pupils who have attained majority, 130. 
 For failure to pursue studies, 131. 
 Forbidden in New Jersey, 131. 
 
 COUNTY SUPERINTENDENT. 
 
 Duties of, 44, 45. 
 
 Not, as such, entitled to injunction to restrain teacher 
 from teaching without certificate, 45. 72. 
 
 Discretion of, will not be controlled by mandamus, 45. 
 
 Not liable for errors of judgment in discharge of duties 
 judicial in their character, 46. 
 
 What must be shown in action on the case against, for il- 
 legally revoking certificate, 46. 
 
 DIRECTORS, TRUSTEES, ETC. 
 
 Their powers and duties, 47-50. 
 
 Duties of, respecting the discharge of teachers, 47. 
 
 Liable only for malice and wantonness, 47, 48. 
 
 Corporate name of, may be substituted in a suit, 48. 
 
 Suit for a district must be in its corporate capacity and by 
 
 its proper officers, 49. 
 
 Verbal contract of, employing an attorney, is valid, 49. 
 In Iowa, president of a district has no authority to employ 
 
 counsel unless in a lawsuit, 49. 
 Have no right to make acceptances of orders, or bills of 
 
 exchange, unless authorized by statute, 49. 
 Individual members acting separately cannot contract a 
 
 debt for the corporation, 50. 
 Not liable to holder of school order for constructive fraud 
 
 in issuing an order they had no right to issue, 50. 
 In Kentucky liable to teacher for salary where they fail to 
 
 raise school fuuds, 50.
 
 INDEX. 145 
 
 DIRECTORS, TRUSTEES, ETC. Continued. 
 
 Where empowered to grade schools, have power to appoint 
 superintendent thereof, 50. 
 
 Their contracts, 51, 52. 
 
 Their liability for negligence, 53, 54. 
 
 Whether individually liable for breaking teacher's con- 
 tract, 84. 
 
 EDUCATION. 
 
 (See PUBLIC SCHOOLS ; HIGH SCHOOLS ; NORMAL SCHOOLS ; 
 BANCROFT ; BROUGHAM ; TAXATION FOR PUBLIC 
 SCHOOLS.) 
 ELECTIONS. 
 
 Time and place of, 35, 36. 
 
 Conduct of, and irregularities therein, 36, 37. 
 
 Sufficiency of the election, 37. 
 
 Imperfect ballots, 38-40. 
 
 EMPLOYMENT OF SCHOOL-TEACHERS. 
 (See TEACHERS.) 
 
 EXEMPTION OF PROPERTY USED FOR EDUCATIONAL PURPOSES. 
 
 Rules of construction, 23-25. 
 
 Taxation the rule, exemption the exception, 23. 
 
 Exemptions strictly construed, 24. 
 
 Construed as direction not to assess rather than as a con- 
 tract, 24. 
 
 When exemption is part of a charter from a State to a cor- 
 poration it is protected by U. S. Constitution, 25. 
 
 Whether property must be actually used for educational 
 purposes, 25, 26. 
 
 It is generally necessary that the property should be actu- 
 ally used as such, 25. 
 
 Case in Supreme Court of United States, 26. 
 
 Case under Massachusetts statute, 26. 
 
 Force of the words " erected for the use of," 26. 
 
 Residences of professors, etc., 27, 28. 
 
 Property of private schools and of private persons, 29-31. 
 
 Exemptions do not usually include private schools, 29. 
 
 Building in part used for other purposes is not exempt, 29.
 
 146 INDEX. 
 
 EXEMPTION OF PROPERTY. Continued. 
 
 A private school is not sucb a " school" or "seminary of 
 
 learning" as is exempt in New York, 29. 
 Grammar school rented by college is not exempt as part of 
 
 the college, 29. 
 
 Private grammar school not exempt, 29. 
 To be a " public school-house" the building must be under 
 
 the immediate control of the school district, 30. 
 Private academy in Indiana, 30. 
 In Louisiana school-house not exempt unless its ownei 
 
 keeps the school, 30. 
 In Michigan it is held that property " belongs to" one hav. 
 
 ing exclusive right of possession, while such right ex. 
 
 ists, 30. 
 
 HARVARD COLLEGE. 
 
 Founded in 1630, 18, 19. 
 
 HIGH SCHOOLS. 
 
 Taxation for, timely and constitutional, 16-22. 
 
 Founded in the colonies in 1647, 19. 
 
 Town of Dedham indicted in 1817 for failure to maintain n 
 
 high school, 19. 
 Justified in the Supreme Court of Michigan by the policy 
 
 of the law and educational history of that State, 16. 
 Ruleson v. Post not an authority against, 20. 
 
 ILLINOIS. 
 
 Ruleson v. Post is not an authority against taxation foi 
 high schools in, 20. 
 
 To be exempt in, a school-house must be under the imme- 
 diate control of the school district, 30. 
 
 School-house may be temporarily used for religious pur. 
 poses, 59. 
 
 School month, length of, in, 80. 
 
 INDIANA. 
 
 Private college exempt in, 80. 
 
 INJUNCTION. 
 
 Will lie to restrain unlawful use of school-house, 62.
 
 INDEX. 147 
 
 INJUNCTION. Continued. 
 
 Will not lie to restrain the erection of a school-house near 
 one's dwelling on the ground of its being a nuisance, 62. 
 
 Resident entitled to an injunction to restrain a teacher not 
 having a certificate, 72. 
 
 County superintendent, as such, not entitled to an injunc- 
 tion to restrain teacher, 72. 
 
 IOWA. 
 
 Statute exempting from taxation property of literary, sci- 
 entific, benevolent, agricultural, and religious societies, 
 etc., construed, 27. 
 
 Duties of school directors respecting discharge of teachers 
 are of a judicial character, 47. 
 
 President of district township has no authority to employ 
 counsel unless in a suit, 49. 
 
 Board of directors in, have no power to make contracts for 
 school apparatus without vote of the electors, 51. 
 
 Electors may direct school-houses to be used for Sabbath- 
 schools, etc., 58. 
 
 School month, length of, in, 79. 
 
 KANSAS. 
 
 School-houses in, may be used temporarily for other than 
 
 school-purposes, 61. 
 School month, length of, in, 79. 
 
 KENTUCKY. 
 
 Failing to raise school funds, are personally liable to the 
 
 teacher, 50. 
 School month, length of, in, 80. 
 
 LOUISIANA. 
 
 School building not exempt in, unless the owner thereof 
 
 keeps the school, 30. 
 School month, length of, in, 80. 
 
 MAINE. 
 
 School district in, may allow school-houses to be used for 
 
 religious purposes, etc., 62. 
 School month, length of, in, 79.
 
 148 INDEX. 
 
 MARYLAND. 
 
 No school-house can be used for other than school purposes 
 unless by consent of county school commissioners, 01. 
 
 MASSACHUSETTS. 
 
 High schools upheld in, 18, 19. 
 Early provision in, for public schools, 18. 
 HARVARD COLLEGE founded in 1G36, 18. 
 Construction of statute exempting property of literary and 
 scientific institutions, 26, 28. 
 
 MEETINGS. 
 
 (See SCHOOL DISTRICT MEETINGS.) 
 
 MICHIGAN. 
 
 Policy of law of, as to high schools, reviewed by Supreme 
 Court, 16, 17. 
 
 Supreme Court holds there is 110 restriction as to grade of 
 instruction if the voters will consent to bear the ex- 
 pense, 16. 
 
 Under exemption law of, the words " belonging to" do 
 not necessarily imply ownership, 5JO. 
 
 School month, length of, in, 80. 
 
 MINNESOTA. 
 
 School month, length of, in, 80. 
 
 MISSISSIPPI. 
 
 School month, length of, in, 79. 
 MISSOURI. 
 
 Directors cannot authorize the use of a school-house in, 
 
 for other than school purposes, 61. 
 School month, length of, in, 80. 
 NEVADA. 
 
 School month, length of, in, 80. 
 NEW JERSEY. 
 
 Construction of exemption clause in tax act of 1851, 27. 
 Grammar school owned and rented by College of New 
 
 Jersey is not exempt as part of the college, 29. 
 Grammar school kept by one at his own risk, for his own 
 profit, is not exempt in, 29.
 
 INDEX. 149 
 
 NEW JERSEY. Continued. 
 
 School-houses in, may be used for other than school pur- 
 poses, 61. 
 
 School month, length of, in, 80. 
 Corporal punishment forbidden in, 131. 
 
 NEW YORK. 
 
 Private boarding-school is not such a school as is exempt 
 
 in, 29. 
 District or neighborhood meeting, when not invalid for 
 
 want of notice, 65. 
 Trustees cannot employ relatives without approval of 
 
 voters, 68. 
 School month, length of, in, 79. 
 
 NORMAL SCHOOLS. 
 
 Establishment of, upheld by United States Circuit Court, 
 
 Eighth Circuit, 20. 
 
 Failure to mention in State Constitution does not amount 
 to a prohibition of, 22, 
 
 OHIO. 
 
 Mere occupation is not occupation for literary purposes, 28. 
 School month, length of, in, 80. 
 
 PENNSYLVANIA. 
 
 School month, length of, in, 80. 
 
 POWER TO TAX FOR SCHOOL PURPOSES. 
 
 (See TAXATION FOR PUBLIC SCHOOLS ; HIGH SCHOOLS ; 
 NORMAL SCHOOLS.) 
 
 PUBLIC SCHOOLS. 
 
 Provision made for, in Scotland, in 1616, 10. 
 
 Actually established in Scotland in 1696, 10. 
 
 Effect of law establishing, in Scotland, 11. 
 
 Some system of, in every great civilized nation, 12. 
 
 Objections to, 12. 
 
 Are powerful to uphold the law and protect the rights of 
 
 property, 12, 13. 
 Lord Brougham's opinion, 13.
 
 150 INDEX. 
 
 PUBLIC SCHOOLS. Continued. 
 
 Daniel Webster's opinion, 14. 
 
 Definition of, 14. 
 
 Synonymous with " Common Schools," 14. 
 
 Fit object of taxation, 14, 15. 
 
 No restriction as to instruction in, 16. 
 
 History of, reviewed, in Michigan, 16. 
 
 Power to tax for, liberally construed, 18. 
 
 Provision for, in Massachusetts, in 1636, 18. 
 
 Provision for, in Puritan colonies in 1G47, 19. 
 
 Remarks of Mr. Bancroft on the public schools of New 
 England, 19. 
 
 Not within national cognizance, 21. 
 
 Importance of, opinion of U. S. Circuit Court, Eighth Cir- 
 cuit, 20. 
 
 Exempt from taxation, 23. 
 
 " Public school-house," to be exempt in Illinois, must be 
 under immediate control of the school district, 30. 
 
 Ground for, may be condemned, 32. 
 
 Are a public necessity, 32. 
 
 Exercise of eminent domain for, is justifiable, 32. 
 
 (See USE OF SCHOOL PHOI-EKTY.) 
 
 REGULATIONS. 
 
 By whom made, 89, 90. 
 By whom enforced, 90, 91. 
 Regulations as to admission, 91-94. 
 
 Admission to graded schools, 91. 
 
 Children of non-residents, 91. 
 
 Discrimination as to race, 92-94. 
 Regulations as to attendance, 94-102. 
 Regulations as to use of Bible, etc., 102-110. 
 Regulations as to studies, 111-113. 
 Regulations as to conduct, etc., 113-115. 
 General principle, 115-llb. 
 
 SCHOOL DISTRICT MEETINGS. 
 
 Notice, time, place and objects of, 63-65.
 
 INDEX. 151 
 
 SCHOOL OPFICEBS. 
 
 (See UNITED STATES COMMISSIONER OF EDUCATION ; 
 STATE SUPERINTENDENT OF PUBLIC INSTRUCTION ; 
 COUNTY SUPERINTENDENT ; DIRECTORS, TRUSTEES, 
 ETC. ; TREASURER ; VACANCIES.) 
 
 SCHOOL PROPERTY. 
 
 (See USE OF SCHOOL PROPERTY.) 
 
 SCHOOL REGULATIONS, 
 
 (See REGULATIONS.) 
 
 SITES FOR SCHOOL-HOUSES. 
 May be condemned, 32. 
 School yard may be condemned, 32. 
 School districts are empowered by law to hold property for 
 
 school purposes, 32. 
 May be acquired by purchase, 32. 
 Contracts for, may be enforced, 33. 
 Officers cannot purchase, without direction of the district, 
 
 33. 
 Where acquired by deed or grant, great care should be 
 
 exercised in naming the grantee, 33. 
 
 STATE SUPERINTENDENT OF PUBLIC INSTRUCTION. 
 Is highest officer in common school system, 43. 
 
 TAXATION FOR PUBLIC SCHOOLS. 
 
 Its origin and history, 9-14. 
 
 Measures for, in Scotland, in 1616, 10. 
 
 Is the most effective means of upholding the law, 12. 
 
 The source of the authority to tax, 14. 
 
 Is for a public use and purpose, 14. 
 
 Is constitutional, 16, 16, 17, 20, 21, 22. 
 
 There can be no taxation in aid of a private school oper- 
 ated for individual profit, 15. 
 
 The policy of the law of Michigan reviewed, 16. 
 
 Grammar schools, high schools, and higher institutions 
 are proper objects of taxation, 16-22. 
 
 Power to tax for public schools liberally construed, 18. 
 (See HIGH SCHOOLS ; NORMAL SCHOOLS.)
 
 152 INDEX. 
 
 TAXATION, EXEMPTIONS FROM. 
 
 (See EXEMPTION OF PKOPEBTY USED FOR EDUCATIONAL 
 PUBPOSBS.) 
 
 TEACHERS. 
 
 Employment of, 66-88. 
 Parties to the contract, 66-70. 
 
 Directors or trustees act for the district, 66. 
 
 Contract extending beyond trustee's term of office, 67. 
 
 Who can contract to teach, 67. 
 
 A minor can contract when, 68. 
 
 Effect of minor's emancipation, 68. 
 
 Minor may put an end to contract, 69. 
 
 Minor may recover proportional compensation where 
 contract is put at an end, 69. 
 
 Minor's claim liable to set-off, 69. 
 
 No suit against minor for breach of contract, 69. 
 
 Married women cannot contract at common law, 69. 
 
 Married women enabled by statute to contract, 69. 
 
 Married women can contract in what States, 69, n. 8. 
 
 Directors' employment of each other void, 69. 
 
 Director's employment as teacher, where valid, vacates 
 the office, 69, 70. 
 
 Duties of teacher and director are incompatible, 70. 
 A certificate prerequisite, 70-73. 
 
 Circumstances cannot supersede necessity of certificate, 
 70. 
 
 In Tennessee commissioners indictable, etc., 70. 
 
 Certificate obtained first day, whether timely, 70. 
 
 Certificate made, but not delivered, 71. 
 
 Statement of good moral character, 71. 
 
 Certificate of a majority not acting together, 71. 
 
 Certificate issued without examination, 71. 
 
 Contract with teacher not having certificate, 72. 
 
 Where examiner refuses to examine teacher, 72. 
 
 School district cannot waive certificate, 72. 
 
 Citizen may enjoin teacher without certificate, 72. 
 
 County superintendent not entitled to an injunction to re- 
 strain toucher
 
 INDEX. 153 
 
 
 
 TEACHERS. Continued. 
 
 Spirit of the requirement of certificate, 73. 
 
 Certificate is prima facie evidence, 73. 
 Character of the contract, 74, 75. 
 
 Usually in writing, 74. 
 
 Where no written contract, teacher entitled to reasonable 
 compensation, 74. 
 
 Katification of parole contract, 74. 
 
 Written contract presumed to contain all, 74. 
 Conditions of the contract, 75-81. 
 
 What the contract is, 75. 
 
 Contract is for personal services, 75. 
 
 Cannot substitute proxy, 75. 
 
 Abilities requisite, 75. 
 
 Industry requisite, 75. 
 
 Contract subject to statutes, 75, 76. 
 
 Clause reserving right to discharge, 76. 
 
 Stipulation that teacher will quit if school is not satis- 
 factory, 77. 
 
 Continuance in school after discharge, 77. 
 
 Power to discharge teacher, 77. 
 
 The word "month," how construed, 78, 79. 
 
 " School month " what is, 79, 80. 
 
 Holidays, what are, 80. 
 
 Holidays, whether counted, 80. 
 
 Contract to teach does not require the teacher to do 
 
 Janitorial work, 80. 
 Breach of the contract, 81,82. 
 
 Effect of breach, 81. 
 
 What constitutes a breach of the contract, 81, 82. 
 
 Closing the school on account of contagious disease, 82. 
 
 What act of God excuses performance, 82. 
 Remedies, 83-85. 
 
 Remedy of board is dismissal, 83. 
 
 Teacher's remedies, 83. 
 
 Suit must be against corporation, 84. 
 
 Directors not individually liable, 84. 
 
 Teacher entitled to reasonable value where no contract, 84. 
 
 Reinstated, when, 85.
 
 154 INDKX. 
 
 TEACHERS. Continued. 
 
 Defences to the teacher's suit for salary, 85-88. 
 
 Teacher stands in loco par entis, 119. 
 
 Authority of teacher, 119 etseq. 
 
 Liability of teacher, 120 et seq. 
 
 Jurisdiction of teacher, 129. 
 
 (See REGULATIONS ; CORPORAL PUNISHMENT.) 
 
 TENNESSEE. 
 
 Commissioner indictable for hiring teacher without certifi- 
 cate, 70. 
 
 TREASURER. 
 
 Liability of, 54-56. 
 
 TRUSTEES. 
 
 (See DIRECTORS, TRUSTEES, ETC.) 
 
 UNITED STATES COMMISSIONER OF EDUCATION. 
 Origin of office, 41,42. 
 Duties of, 41-44 
 
 USE OF SCHOOL PROPERTY. 
 
 For religious, literary, and township purposes, :tc., 58-62. 
 Where unlawful, injunction will lie, 62. 
 
 VACANCIES. 
 
 By operation of law, 56, 57. 
 
 WEST VIRGINIA. 
 
 School-houses may be used for other than school purposes, 
 61. 
 
 WISCONSIN. 
 
 Directors cannot authorize the use of a school-house for 
 
 other than school purposes, 61. 
 School month, length of, in, 79.
 
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 in the Instruction of young teachers. A thousand points of interest to this fii&sa are 
 most satisfactorily dealt with. 
 
 Schools and Schoolmasters Dickens, - i 25 
 
 Appropriate selections from the writings of the great novelist. 
 
 The Metric System Davies, i 50 
 
 Considered with reference to its general introduction, and embracing the views 
 of John Quincy Adams and Sir John Uerschel. 
 
 The Student; The Educator Phelps, - - each, i 50 
 The Discipline of Life Phelps, - i 75 
 
 The authoress of these works is one of the most distinguished writers on edu- 
 cation, and they cannot fail to prove a valuable addition to the School and Teachers' 
 Libraries, being in a high degree both interesting and instructive. 
 
 A Scientific Basis of Education Hecker, - - a 50 
 Adaptation of Btndy and classification by temperaments. 
 
 49
 
 The National Teachers' JLibrrtry. 
 
 Teachers' Hand-Book Phelps $i 50 
 
 By WM. F. PHELPS, Principal of Minnesota State Normal School Embracing 
 the objects, history, organization and management of Teachers' Institutes, followed 
 by Methods of Teaching, in detail, for all the fundamental branches. Every young 
 teacher, every practical teacher, every experienced teacher even, needs this book. 
 
 From the New York Tribune. 
 
 " The discipline of the school should prepare the child for the discipline of life 
 The country schoolmaster, accordingly, holds a position of vital interest to the des- 
 tiny of the republic, and should neglect no means for the wise and efficient discharge 
 ol his significant funcfons. This is the key-note of the present excellent volume. 
 In view of the supreme importance of the teacher's calling, Mr. Phelps has presented 
 an elaborate system of instruction in the elements of learning, with a complete de- 
 tail of methods and processes, illustrated with an abundance of practical examples 
 and enforced by judicious counsels. 
 
 Stone's Topical Course of Study - 40 
 
 This volume is a compilation from the courses of study of our most successful 
 public schools, and the nest thought of leading educators. The pupil is cnatd.-d to 
 make full use of any and all text -books bearing on the given topics, and is incited 
 to use all other information within his reach. 
 
 American Education Mansfield - i 50 
 
 A treatise on the principles and elements of education, as practised in this 
 country, with ideas towards distinctive republican and Christian education. 
 
 American Institutions De Tocqueville - I 50 
 
 A valuable index to the genius of our Government. 
 
 Universal Education Mayhew I 75 
 
 The subject is approached with the clear, keen perception of one who has ob- 
 served its necessity, and realized its feasibility and expediency alike. The redeem- 
 ing and elevating power of improved common schools constitutes the inspiration of 
 the volume. 
 
 Higher Christian Education Dwight - I 50 
 
 A treatise on the principles and spirit, the modes, directions mnd results of all 
 true teaching ; showing thit right education should appeal to every element of en- 
 thusiasm in the teacher s nature. 
 
 Oral Training Lessons Ba r nard - i oo 
 
 The object of this very useful work is to furnish material for instructors to 
 impart orally to their classes, in branches not usually taught in common schools, 
 embracing all departments of Natural Science and much general knowledge. 
 
 Lectures on Natural History Chadbourne 75 
 
 Affording many themes for oral iaOtruction in this interesting science especially 
 in schools where it is not pursued as a class exercise. 
 
 Outlines of Mathematical Science Davies - i oo 
 
 A manual suggesting the best methods of presenting mathematical Instruction 
 on the part of the teacher, with that vwnprehensi ve view of the whole which is nec- 
 essary to the intelligent treatment of a part, in science. 
 
 Nature and Utility of Mathematics Davies - i 50 
 
 An elaborate and lucid exposition of the principles which lie at the foundation 
 of pure mathematics, with a higiily ingenious application of their results to the de- 
 velopment of the essential idea of the different branches of the science. 
 
 Mathematical Dictionary Davies and Peck 400 
 
 This cyclopaedia of mathematical science defines, with completeness, precision, 
 and accuracy, every technical term ; thus constituting a popular treatise on each 
 branch and a general view of the whole subject. 
 
 50
 
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