APPELLATE COURT OF ILLINOIS. 
 
 FOURTH DISTRICT. 
 
 Jiilv Tei-iii .A.. T>. IS^O. 
 
 WM. H. POWEL, ct al, 
 
 Appeal from 
 
 ^''' ^ ^t. Clair Co. 
 
 r.OARD OF DIRECTORS OF SCHOOLS. "
 
 r/^r^*r"A
 
 ii^JJ" /"X'^t^ . ^ 
 
 APPELLATE COURT OF ILLINOIS. 
 
 FOURTH DISTRICT. 
 
 JiiU TTerm J^, I>. 1880. 
 
 WM. H. POWEL, et al. 
 
 vs. 
 
 BOARD OF DIRECTORS OF SCHOOLS. ] 
 
 / Appeal from 
 [St. Clair Co. 
 
 BRIEF OF APPELLEES COUNSEL 
 
 Bill alleges that complainants are owners of real and 
 personal property, subject to taxation for common school 
 purposes within the corporate limits of School District 
 Number 4, in Township 1, N. R. 8 W., in St. Clair County, 
 containing not less than twelve thousand inhabitants. That 
 the School Board of that District has levied taxes &c., and 
 controls the same for the purpose of giving the children of 
 said district a good common school education. 
 
 That said Board has no power to prescribe any studies, 
 other than the branches of education prescribed in the 
 qualification for teachers, to-wit : Orthography &c., and 
 such other branches of an English education, including 
 
 .'«)'r>B'i.o
 
 2 
 
 vocal music and dniwing, as the said lioard of Education 
 or the voters of the district at the annual election of Di- 
 rectors may prescribe. 
 
 Complainants further allege that saitl Board without 
 authority are using the common schools of said district for 
 instruction in the branches of a German education and have 
 employed teachers to teach and are teaching in said schools 
 German Orthography, German Reading, German Penman- 
 ship and German Grammar, and are misappropriating and 
 diverting the common school fund to the teaching of said 
 German branches. 
 
 Complainants further represent that said Board of 
 Education have employed a large number of teachers on 
 account of the qualification to teach said branches of a 
 German education and are paying said teachers out of the 
 School Fund. That this is against public policy and void. 
 
 The bill then calls for an answer, and puts a number 
 of specific questions, viz : 
 
 1. Give the name of teachers and what salary each 
 gets. 
 
 2. Give names of teachers which instruct in the 
 branches of a German education. 
 
 3. What studies are taught in said schools in the 
 German language, by whom taught? the salary paid. 
 
 4. How manv children are instructed in the German 
 lany^uage. 
 
 5. How many pupils in the schools receive instruct- 
 ion in the German language only. 
 
 How many German classes are there in said schools, 
 and how much time is diverted to each class each day for 
 instruction in German. 
 
 Bill concludes with i)rayer of an injunction against 
 the Directors to permit or to cause any branch of a Gernuin 
 Education to be taught in said schools and to pay directly 
 or indirectly out of the common school fund derived by
 
 t!5 
 
 ■3- 
 
 
 3 
 
 taxation for the support of the coniinon schools of said 
 district any money &c. 
 
 The answer is very full as to all the questions asked, 
 and shows that the learning of German is optional, that 
 about 90 per cent of all the pupils attend the German 
 lessons. That German has been taug-ht for the hist 15 
 years in the Belleville schools. That the peof)le by a large 
 majority at the last election of directors approved of the 
 teaching of German, that no pupils receive lessons in 
 German only, that the teaching of German does not add to 
 the costs of the school and does not increase taxation, that 
 all teachers capable of instructing in German, teach also 
 the English branches in their respective classes. 
 
 That one hour per day is devoted to the German, 
 except in the lowest grade, where but thirty minutes are 
 allowed for the teaching of that language. 
 
 Answer denies that the Board are acting without 
 authority. 
 
 Bill dismissed by Circuit Court on hearing. 
 
 Appeal taken by Complainants. 
 
 The answer not being controverted and therefore 
 taken as true, leaves really but one fact to consider, upon 
 which complainants can rest their complaint, and that is, 
 that the Board of Directors have allowed the teaching 
 of the German language to be one of the branches of the 
 education in the schools of the districts. 
 
 We will premise here, that the bill seems to proceed 
 upon the idea, that the means for the support of schools 
 are solely derived from taxation, to which they as citizens 
 of the district in question contribute. But this is a mistake. 
 Congress has granted to each township in the State of 
 Illinois, the 16th Section for the use of schools, and this 
 section has been sold and the proceeds thereof constitute 
 part of the school fund. Congress has besides granted to 
 the State three fifths of five per cent of the net proceeds of
 
 tlie laiKl.'^ lying within the Stutc, arising from sales of such 
 land since 18H>, to be appropriated by the legislature /or the 
 ejicouragement of learning which fund has accumulated" 
 to a very large amount, and has been increased by the 
 Surplus Revenue distributed by act of Congress amongst 
 the different States, and the interest of which sums com- 
 bined is annually distributed to the different counties of 
 the State, in [)roportion to the number of children in 
 each County. 
 
 There can Ijc no question that the Legislature could- 
 
 use those funds for any kind of schools, they thought 
 
 l)roper to establish, there l)eing no limitation in those 
 
 congressional grants as to the character of those schools. 
 
 We will further premise that complainants seem to be 
 
 • under the impression that by common schools such schools 
 
 are meant in which onlv the rudiments of learninij are 
 
 taught. But common schools do not mean elementary, 
 
 primaiy schools, schools for common people, but means 
 
 schools open to all, as opposed to private schools. Webster 
 
 defines a connuon school: "A school maintained at the 
 
 public expense and open to all." The word common has no 
 
 reference to the grade of schools and kind of studies to. bo 
 
 taught. "Common" is belonging to the public, not private or 
 
 exclusive, as we speak of "commonwealth, common good." 
 
 It is a matter of history that the "common schools" 
 
 established by the Puritans in New England were of a 
 
 superior order, and that many l)ranches, latin included, 
 
 which now a days are relegated to high schools and 
 
 accademies, were taught therein. 
 
 As under our school law persons up to the age of 
 twenty-one years may avail themselves of. the instruction 
 imparted in our common schools, it would appear almost 
 absurd to suppose that nothing but the bare rudiments of 
 learning could be acquired in these institutions. 
 
 If we now turn to the provisions of our school law
 
 (Revised Statutes, 1874, p. 9(i3, § 48 and 50) we findin sect. 
 48, "that the school board shall direct, what branches of 
 study shall he taught," and in sect. 50, "that every school 
 established under the provisions of this act shall, be for the 
 instruction in the branches of education prescribed in the 
 qualiiication for teachers, and in such other branches, in- 
 eluding vocal 7nusic and drawing, as the directors or the 
 voters of the district at the annual election q/ directors may 
 prescribe.''' 
 
 In order to overcome these plain provisions of the statute 
 while citing them in their bill, the complainants interpolate 
 into the latter clause of the passage just mentioned bj^us, the 
 words : of an English education, so as to make the law 
 read : and in such other branches of an English education, 
 as the directors may prescribe. 
 
 But even if the law did read that way, we do not see 
 that it would help their case much. Do all schools, colleges, 
 universities in the United States, or in England become un- 
 english, latinised, germanised or gallicised, because in all 
 these institutions of learning, a few or even many hours in 
 the week are set apart to the studying of ancient or modern 
 lansuao-es? The fact is that education while it does furnish 
 a certain and always limited amount of positive knowledge, 
 has to deal principally with the training and disciplining of 
 the mind, so as to make it a fit instrument for the recept- 
 ion and digestion of higher knowledge in riper years, and 
 for analysing and putting to use such acquired knowledge. 
 There is no such thinff as an eno-lish or an american or a 
 french education otherwise than that instruction is imparted 
 in every country in its own language. It has been a mooted 
 question amongst schoolmen, whether mathematics or the 
 learnino; of a foreion lan2;uao;e, when scientificallv and 
 rationally taught, are more apt to sharpen the juvenile 
 mind. But all aoree that either does to a more or less ex- 
 tent. If it should so happen, that the possession of a
 
 6 
 
 foreign huigutigc would also be of very great direct uiid 
 practical advantage on account of its being extensively used 
 in the country, the 1)enetit of instruction in such a language 
 can hardly be overrated. The propriet}'^ of teaching a for- 
 eign language and the decision as to which should i)e sel- 
 e{jted, are matters of judgment with the board, and that they 
 have exercised in this case their judgment soundl}' seems 
 to appear from the fact, stated in the answer, that 90 per 
 cent, of all the children in the Belleville schools take 
 irerman lessons, while the attendance to such lessons is 
 purely optional with the parents or pupils. 
 
 The Supreme Court of Illinois has had occasian to pass 
 upon the powers of school boards in several instances, and 
 its decisions were altogether in favor of leaving to such 
 boards a verv larjje discretion. 
 
 In the case of 
 
 Rulison et al. vs. Post, 79 111., 5fi7, 
 
 the Supreme Court decided that pupils could not be com- 
 pelled to attend instructions in other and higher branches, 
 than those enumerated, but that such attention must be 
 left optional to the parents or guardians, but the Court 
 said at the same time, "that the school board may undeni- 
 ably require the teacher to impart instruction in other and 
 higher branches." 
 
 The school board having by the act of the legislature 
 power to direct what other and higher branches should be 
 taught in our public schools, the Courts have no control 
 over the matter, and have no authority to designate what 
 shall or shall not be taught in the schools under the charge 
 of that board, or to direct what the board shall do or leave 
 undone in their manaoement of the schools. 
 
 The question of the power of the (\)urts to interfere 
 Avith the discretion exersised by school boards under a law 
 similar to our own came up in Missouri in the case of Roach
 
 vs. the board of President and directors of the St. Louis 
 Public Schools. 
 
 That board acts under a special charter, and its powers 
 are hiid down in terms general indeed, but not as broad as 
 those in our own school law relating to school directors. It 
 is, to have charge and control of the Public Schools of the 
 City of St. Louis ; to make all rules, ordinances proper for 
 the management of such schools, so that the same be not 
 inconsistent with the laws of the land. 
 
 Yet the Circuit Court of St. Louis, as well as the 
 Appellate Court for the St. Louis District, upon a bill for 
 an injunction to enjoin the Board from teaching the higher 
 brandies of education, including ancient and modern 
 languages, particularly tlie German, decided that the plain- 
 tiff had no standins; in Court and dismissed the bill. 
 
 The opinion in the Appellate Court was delivered by 
 Judge Hayden, and is a very able one. In the course of it 
 the Court says: "The complaint in jjoiut of fact is not 
 that the defendant (the school board) is not using its fund 
 or exersising its powers for the support of schools, but that 
 the defendant is teaching the children who attend its 
 schools more than the plaintiff thinks should be taught in 
 the public schools. But the plaintiffs presents no standard 
 by w^hich the courts can proceed. The precision and uni- 
 formity which judicial action demands find no basis in the 
 notions of any given plaintiff, however well supported by 
 argument, as to what constitutes a proper education to be 
 given in the jiublic schools. But into such notions and into 
 considerations of policy and expediency, the case of the 
 
 plaintiffs resolves itself." "The extent to which it is 
 
 advisable to educate the people does not address itself to 
 the courts, but to the people themselves, and if they put 
 the power in the hands of particular officers or boards, and 
 it is exercised as conferred, the fact that the power is ex- 
 cessive is no aro;ument against it."
 
 8 
 
 The stinie question ciune before the 8upreim' Court of 
 
 Ohio. 
 
 Board of Education vs. Minor, 28 Ohio 8t. 211. 
 
 The hiw governing the public schools of CJincinnati pro- 
 vides that the board of education "shall have the super- 
 intendence of all the schools in said city, organised and 
 established under this act, and from time to time shall 
 make such regulations for the government and instruction 
 of the children therein as to them shall appear proper and 
 expedient, and generally do and perform all matters and 
 things pertaining to the duties of this said office, which may 
 be necessary and proper to promote the education, morals 
 and ijood conduct of the children instructed in said i)ublic 
 schools." (See opinion p. 240.) The C'ourt held that it 
 had no right to interfere with.the action of the board, and 
 whether said board enacted wise or unwise regulations, or 
 whether they should or should not be compelled to adopt a 
 certain course, was for the legislature to determine and 
 that the Courts had no power to interfere. 
 
 In a very late case decided by our Supreme Court, 
 McCormic vs. Burt, opinion filed March 17. 1880, not yet* 
 reported, the Court in respect to the power and authority 
 of the Directors of School districts say : "What rules and 
 reo-ulations will best promote the interests of the school 
 under their immediate control, and what branches shall be 
 tauoht, and what text books shall be used, are matters left 
 to the determination of the directors, and must be settled 
 by them from the best lights they can (rbtain from any 
 source, keeping always in view the highest good of the 
 whole school." The Court proceed to say "that in such 
 matters they act judicially in a matter involving discretion 
 in relation to the duties of their office." 
 
 We do not wish however to be misunderstood. While 
 we contend upon the best authorities that free schools, or 
 even if the words were used common schools, do not mean
 
 primary or rudinientHry schools, 3'^et they mean schools, 
 as contradistin^iiuisheci from academies and universities, 
 where a purely clat>sical or scientific course of studies is 
 pursued. If oui- schools were attempted to be converted 
 into such institutions by school-boards, they would exercise 
 their discretion unreasonably, and their action might be 
 questioned in the judicial forum. 
 
 But under precisely similar laws, and some not as 
 strong as ours, the trerman lansuaoe for instance has been 
 taught for many years past in a great many cities and 
 towns in this Union, such as New York, Buffalo, Cleve- 
 land, Cincinnati, 8t. Louis and many others that might be 
 named. 
 
 The sections under consideration have received a con- 
 struction by Newton Bateman, for many years Super- 
 intendent of Public Instruction in our State. He published 
 in 1865 the School Laws of Illinois with the official and 
 judicial decisions in relation to common schools. On page 
 126 of this publication he lays it down that the instruction 
 imparted in our public schools, must be so imparted through 
 the medium of the enalish lansuage and no other. "But," 
 continues he (page 127), "lest the foregoing provisions 
 should be misunderstood or misapplied, this section (50) 
 closes with the proviso that nothing therein contained shall 
 prevent the teaching in common schools of other and higher 
 branches than those specified. By this proviso all necessary 
 latitude is given for the introduction into our common 
 schools of such additional or higher branches, whether of 
 lanofuase or mathematics etc., as mav in given circum- 
 stances be deemed advisable. It will thus be seen that 
 while the German and other foreign lansuages cannot be 
 made the teaching language, or medium of communication 
 in our schools, vet thev may be introduced and taught to 
 any necessary extent through the medium of English, the 
 same as the Latin or Greek or other additional branches
 
 10 
 
 are taught, and so far from intending to disfontinue the 
 teaching in our public schools of modern hmguages, esj^eci- 
 ally the grand rich old german tongue, I would earnestly 
 encourage the teaching of that language whereever circum- 
 stances will admit and expediency recommend the same to 
 be done." 
 
 This construction is of course not binding upon the 
 Courts, but the high character of this functionary for in- 
 telligence and learning entitles it to great weight. 
 
 This construction being given fifteen years ago by one 
 who by law was authorised to give advice and to interpret 
 the school laws, and having been published all over the 
 state, it is strange indeed, that if wrong it has never since 
 been questioned, and that the Legislature has not deemed 
 fit to change the law in that respect, if as complainants 
 content, the law as so construed were against public policy. 
 
 Mr. Harris, the eminent Superintendent of the Public 
 Schools in St. Louis, places his advocacy of having the 
 German taught in the Public Schools upon the ground 
 amongst others, that it was the best public policy. That 
 were the teachins- of German forbidden, thousands of 
 german children would be taken off the public schools and 
 would fail to identify themselves as they should with the 
 American nation. He as well as the President of the School 
 board in Cincinnati (Sands) in his last annual report, attest 
 to the remarkable fact, that the scholars who learn English 
 and German at the same time were for their age much 
 further advanced than those w^ho study English alone. 
 
 We can hardly treat seriously the argument of appel- 
 lants' counsel, that in as much as some time is devoted to 
 ■the teaching of the German, the expenses of the school are 
 thereby increased, although no additional compensation is 
 paid to those teachers who instruct in that language. It 
 must be recollected that the attendance on the german les- 
 son is optional, and those who do not attend, do not sit
 
 11 
 
 idle but pursue their other studies, while those who do at- 
 tend learn something considered very valuable by the school- 
 board in lieu of what they may mis.s. 
 
 In the case of McCormick vs. Burt, supra, the same 
 objection as to loss of time might have been urged. In that 
 case the Supreme Court decided that the school-board had 
 the right to expel a catholic boy, who, the attendance being 
 optional, did not lay aside his books and pursued his stud- 
 ies, while a chapter from King James' translation of the 
 Bible was read. iVow the reading of a chapter of King 
 James' translation of the Bible (not exceeding 15 minutes, 
 as the rule prescribed) is not one of the enumerated branches 
 of teaching, and as it took time from other studies, it would 
 according to the nice calculations made by appellants coun- 
 sel unnecetjsarily increase the ourden of the tax payers. But 
 this brioht idea does not seem to have struck the counsel 
 who argued, nor the Court who decided the case. 
 
 Much labor is bestowed by appellants' s counsel upon 
 the point, that such other branches, which the school-board 
 may direct to be taught, cannot possibly embrace the 
 German language. They think that it is no branch of edu- 
 cation, or at least of •c\nE)iglisli education/ Here again we 
 meet with the interpolation of the word "English", no- 
 where to be found in the law, and as we have said before, 
 if it w^ere in the law it would not strenghten their position. 
 Those branches, they say, must be of the "same kind", 
 must be "the same as has been mentioned" which is the de- 
 linition of "5^^t7i", as stated by Webster. They pay no 
 attention to the word "o^Aer" at all. What the other 
 branches are is to be left to the discretion of the board, 
 within reasonable limits, as we have shown before, andean 
 not depend upon the notions of uneducated or half educated 
 men of whom a majority of taxpayers may consist. The 
 law has given that discretion to the board, and there it must 
 remain, unless the Legislature sees proper to restrict it.
 
 12 
 
 III the case of Kulison el al. vs. Post, aliemiy cited, the 
 Court, while holding that i)ii[)ils could not l)e compelled to 
 attend to other branches not enumerated, yet decided that 
 the Board had authority' to prescril)e what they should be. 
 In that case the disputed branch in question was "l)ook- 
 keeping", which certainly is not the "same" as the enum- 
 erated branches, "the same as mentioned before", but is 
 other than those enumerated. 
 
 » But we deem it unnecessary to explain what is so plain, 
 but will merely remark in passing that the appellants 
 counsel several times speaks of branches of a German edu- 
 cation, as taught in the Belleville schools, while there is 
 simply given one german lesson per day. How a lanirua^e 
 could be taught without teaching its orthography, its gram- 
 mar, the mode of reading and writing it, we fail to under- 
 stand. Those various exercises are not branches of a 
 german education, but only one branch of the school edu- 
 cation. 
 
 The counsel for appellants cite the case of Kichards vs. 
 Raymonds, 92 111. 612, and seem to draw from it the con- 
 clusion that teaching German in a common school would be 
 unconstitutional. But we think that this is a very great 
 mistake. In that case the question Mas whether the law 
 providing for high schools was constitutional or not. It was 
 contended that the article VIII sect. 1 of the Constitution 
 which provides that "the General Assembly shall provide a 
 thorough and efficient system of free schools, whereby all 
 children of this state may receive a good common school 
 education," was a limitation on the power of the Legis- 
 lature, and that none but ordinary common schools could 
 be created under this section of the Constitution. In the 
 case before the Court almost innumerable branches of learn- 
 ing were taught in the High School in question amongst 
 others Philosophy (whatever that may mean), Botanv, 
 Rhetoric, Latin, Chemistry, Astronomy, Greek, French
 
 13 
 
 and German. Yet the Court decided that the High School 
 hiw was not unconstitutional, that the lano;uao;e of theCon- 
 stitution was hroad enough to include Hioh' Schools in its 
 term of "Free Schools", and in doing so the Court sa}^ : 
 
 "No definition of Common School is given or specified 
 in the Constitution, nor does that instrument declare what 
 course of studies shall constitute a common school edu- 
 cation. How can it be said that a High School is prohibited 
 by the Constitution and not included within the definition 
 of a Common School? The phrase "a common school edu- 
 cation" is not easily defined. One might say that a student 
 instructed in reading, writing, geographj-, english grammar 
 and arithmetic had received a common school education, 
 while another who had more enlaroed notions on the sub- 
 ject might insist that history, natural philosophy and al- 
 gebra should be included. It would thus be impossible to 
 find two persons who would in all respects agree in regard 
 to what a common school education should be. Indeed it- 
 is a part of the history of the State, when the Constitution 
 was framed, that there was a great want of uniformity in 
 the course of study prescribed and taught in the common 
 schools of the state. In the larger and more wealth}^ counties 
 the free schools were more graded and the course of in- 
 struction of a high order, while in the poorer counties the 
 old district system was still retained and the course of in- 
 struction prescribed of a lower order. At the time of the 
 adoption of the Constitution there was a wide difference of 
 opinion in different parts of the State as to what constitutes 
 a common school education, and we apprehend that a Con- 
 stitution which would have impaired in any degree the free 
 High School system in existence in many parts of the state, 
 would not have received the approval of the voters of the 
 state. But however that may be, w7^^7e the Conslitution 
 has not defined lohat a common school education is and has 
 failed to prescribe a limit, it is no part of the duties of the
 
 14 
 
 Courts of this State to declare by judicial construction 
 what particular branches of study shall constitute a common 
 school education.''' 
 
 Wc could not possibly express ourselves l>etter than the 
 Supreme Court has done in that case, to sustain our point. 
 We will barely make an additional remark. When the Con- 
 stitution of 187U was framed, the German had been tausrht 
 in our Common Schools and High Schools, for many years 
 in a large number of our cities and towns, particularly in 
 Chicago, and a large number of citizens would never have 
 voted for the Constitution, if they had construed it, as the 
 counsel for appellants wish to do. 
 
 We have already referred to the Missouri case, Roach 
 vs. Board of Education. The constitutional question was 
 also made there, the Constitution of Missouri providing that 
 the General Assembl}' shall establish and nniintain Free 
 Public Schools (Constitution of 187.^, Article XI ). We 
 have already seen, that Public schools mean Cotnmon 
 schools. Yet the Court held that this article was no rest- 
 riction on the School-board in the City of St. Louis, to pro- 
 vide for schools of a higher grade, and for teaching German 
 even in the lower grade. The Legislature of Missouri under 
 a similar provision of the former Constitution has provided 
 by law (acts 18G0 p. 90) that all teachers in the public 
 schools should be required to understand the English lang- 
 uage, and that where other languages are taught the Englich 
 lano'uaire shall be the medium of communication. In 18G5 
 it was provided, that the Township board might provide for 
 instruction in any of the modern languages in any of the 
 schools of their respective townships, if they deem it ad- 
 visable (Acts of 1865, adjourned session p. 175). Now all 
 this legislation shows most clearly that the provision of the 
 Constitution, almost identical with our own, was not con- 
 sidered as an obstruction to teach a modern language in a 
 common school, and also proves that the people of Missouri
 
 15 
 
 hold different views as to the usefulness of such a study 
 from those of the appellants. These school laws of Missouri 
 apply to the state at large, and not to the City of St. Louis, 
 which as remarked before has a special act concerning its 
 schools. 
 
 While the Legislature of Missouri has implicitly allowed 
 the teaching of modern languages, our Legislature has de- 
 legated that power in the most general terms to the Board 
 of School Directors, in allowing them to select other 
 branches, in either case without violating the constitutional 
 provision. 
 
 The same question as to high schools being unconstitu- 
 tional came before the Supi;eme Court of Michigan. The 
 provision of the Constitution of Michigan is peculiar and 
 seems to be rather restrictive. It reads as follows, Article 
 13. Education : "The Legislature shall within five years 
 provide for and establish a system of primary schools 
 whereby a school shall be kept without charge of tuition at 
 least 3 months in each year in every school district in the 
 State, and all instruction in said schools shall be conducted 
 in the English languaoe." 
 
 Under this clause the Supreme Court of Michigan, in 
 the case of 
 
 Stewart vs. School District, 30 Mich. 69, 
 decided, Judge Cooley delivering the opinion, that the 
 Legislature could provide for other than primary schools, 
 and could provide for graded and high schools. The 
 Supreme Court of Michigan goes further than our Supreme 
 Court. It does not look upon. this provision of the Consti- 
 tution as a limitation^ but as mandatory, securing by 
 Constitutional provisions at least a minimum of instruction 
 to all classes of the people free of charge. It is well 
 known that in many States the free school system was a 
 very mooted question, and many plausible reasons were 
 urged against it. Some protestant denominations, as well
 
 16 
 
 as the entire catholic church, couutinu: it?* iiiillion.s of 
 votaries, seriously oppose the free school law system, 
 desirinjr nH schools to be confessional schools. 
 
 To take this exciting question awaj from ever fiuctu- 
 atinir lejiislative action, Constitutional ijrovisions were 
 enacted guaranteing instruction in the i)uhlic schools free 
 to every child in the land. 
 
 Judge Cooly says Page 80 : "While the. Legislature 
 was required to make provisions for district schools at least 
 three months every year, no restriction was imposed upon 
 its power to establish schools intermediate the connnoii 
 district schools and the university, and we find nothing to 
 indicate an intent to limit their diserection as to the class or 
 grade of schools or as to the range of studies or grade of 
 instruction loliich might be provided for the district schools. 
 
 While every provision of a constitution in a general 
 sense may be called a limitation upon the constituted state 
 authorities, to which it may refer, in a more accurate and 
 technical sense, there are many provisions which are not 
 limitations or restrictions. Some are mandatory, requiring 
 a certain action on a certain subject. But such special action 
 by no means exhausts the whole sul)ject, and leaves it ex- 
 cept as to the special provision under the control of the 
 general legislative power. A constitution may for instance 
 require a legislature to charter no corporation without pro- 
 viding for personal responsibilit}^ of its stock holders. Yet 
 there is no question that the legislature might lay the stock, 
 holders under additional restrictions. A constitution may 
 provide as ours has done^ for the enactment of a general 
 Banking law or Railroad law, and at the same time require 
 that certain limitations and restrictions shall be inserted in 
 such laws, yet those mandatory provisions would not ex- 
 haust the subject, and the legislature in its sovereign cap- 
 acity could add many other restrictive provisions. 
 
 The constitution of 1848 contained almost a little
 
 17 
 
 special code to enable delinquent tax payers to keep their 
 lands and to protect them from sale. But is there any doubt 
 but that the legislature could have added additional pro- 
 visions, provided they did not come in conflict with the 
 coustitutionl provisions ? 
 
 So we say that even if the coustiution had only pro- 
 vided for schools of the most primary character, the legis- 
 lature could have provided for a higher education in those 
 schools or in high schools, as it had done before under the 
 Constitution of 1848, which did not contain a constitutional 
 provision in regard to the establisment of common schools 
 at all. 
 
 A similar decision was made in Massachussetts, 
 Cushing vs. Inhabitants of Newbuiyport, 
 
 10 Metcalf, 508. 
 
 Judge Shaw delivered the opinion of the Court. 
 
 We do not wish to extend this brief, but refer the 
 Court to the decision itself, quoting but one passage : 
 
 "The description of schools which the law required 
 towns to maintain was not a description of those which alone 
 it had the, power to support at the common expense. That 
 Townships having by other laws authority to expend monej^ 
 for public instruction, the general school law estal)lishing 
 mere ordinary town schools during a limited period of the 
 year, was not a limit to their power to estaljlish schools 
 for longer periods and extending to instructions in branches 
 of knowledge beyond those required by statute.'" 
 
 But taking even the view that our Supreme Court has 
 expressed in the case of Ejchards vs. Kaj'mond, and on 
 which the case did not turn, under the broad construction 
 given to the Constitution by that Court, that decision 
 amply bears out our position, that neither the Constitution 
 nor the laws of our State forbid the teaching of the German 
 or any other modern languaire to be tausfht throui>h the 
 medium of English in our public schools, and that the de-
 
 18 
 
 feudants have not "violated the hiw", or "fhigrantly 
 evaded it," as the appelhmts' counsel in their misguided 
 zeal have charged, but have carried it out in good faith the 
 same way their predecessors have done for nearly twenty 
 years past, and have been therein supported by a large 
 majority of the citizens and tax paj^ers of that district. 
 
 G. & G. A. KOERNER, 
 
 for appellees, the Board of Education. 
 
 ff