18, School Bd. Dist. No. 18, Garvin County v. Thompson

• Decision Date: 13 May 1909
• Parties: SCHOOL BOARD DIST. NO. 18, GARVIN COUNTY, et al. v. THOMPSON et al.
• Court: Oklahoma Supreme Court

103 P. 578

24 Okla. 1

SCHOOL BOARD DIST. NO. 18, GARVIN COUNTY, et al. v. THOMPSON et al.

Supreme Court of Oklahoma

May 13, 1909

Syllabus by the Court.

At common law the principal duties of parents to their legitimate children consisted in their maintenance, their protection, and their education. While the municipal laws took care to enforce these duties, yet it was presumed that the natural love and affection implanted by Providence in the breast of every parent had done so more effectually than any law. For this reason the parent, and especially the father was vested with supreme control over the child, including its education. Except where modified by statute, that authority still exists.

The school authorities of this state have the power to classify and grade the scholars in their respective districts and cause them to be taught in such departments as they may deem expedient. They may also prescribe the courses of study and text-books for the use of the schools, and such reasonable rules and regulations as they may think needful. They may also require prompt attendance, respectful deportment, and diligence in study. The parent, however, has a right to make a reasonable selection from the prescribed course of study for his child to pursue, and this selection must be respected by the school authorities, as the right of the parent in that regard is superior to that of the school officers and the teachers.

Appeal from District Court, Garvin County; R. McMillan, Judge.

Mandamus by J. B. Thompson and others against School Board District No. 18, Garvin County, and others. Judgment for plaintiffs and defendants appeal. Affirmed.

R. T Jones, for appellants.

J. B Thompson and Blanton & Andrews, for appellees.

KANE C.J.

This was an action in mandamus, commenced in the district court of Garvin county by the defendants in error to compel the school authorities of the city of Pauls Valley, in said county, to reinstate their children in the public schools, from which they were expelled for the reason that under direction of their parents they refused to take singing lessons, which it seems were a part of the prescribed course of study in said schools. The school board, and teachers of the schools, were informed by the appellees that they did not wish their children to take singing lessons, that they would not supply them with the necessary singing books to do so, and requested them to excuse their children from this branch of the regular course. The school authorities refused to grant the request of appellees, and the appellees refused to furnish the singing books, and the children refusing to participate in the singing exercises, were expelled. It is agreed by both sides that, when boiled down, the only question really involved in this case is whether a patron of the public schools may make a reasonable selection from a course of study prescribed by the proper school authorities for his child to pursue, in opposition to a rule prescribed by such authorities requiring the child to take all the studies in such course. The trial court decided this question in favor of the appellees, and the appellants, not being satisfied with the judgment, bring the case to this court by petition in error.

There is some conflict as to the power to suspend or expel pupils for failure to participate in certain required studies or exercises if the parents of the pupil request that the child be excused; but it seems to us that the weight of authority and the better reasoning sustain the judgment of the trial court. At common law the principal duties of parents to their legitimate children consisted in their maintenance, their protection, and their education. These duties were imposed upon principles of natural law and affection laid on them not only by Nature herself, but by their own proper act of bringing them into the world. It is true the municipal law took care to enforce these duties, though Providence has done it more effectually than any law by implanting in the breast of every parent that natural insuperable degree of affection which not even the deformity of person or mind, not even the wickedness, ingratitude, and rebellion of children, can totally suppress, or extinguish. 1 Lewis' Blackstone, § 447. The statutes of Oklahoma defining the relation between parent and child are in the main declaratory of the common law. Section 3763, Wilson's Rev. & Ann. St. 1903, provides that the parent entitled to the custody of a child must give him support and education suitable to his circumstances. Section 3769, Wilson's Rev. & Ann. St. 1903, provides that: "The authority of a parent ceases, first, upon the appointment by a court of a guardian of the person of the child; second, upon the marriage of the child; third, upon its attaining majority." Section 3768, Wilson's Rev. & Ann. St. 1903, provides that: "The abuse of parental authority is the subject of judicial cognizance in a civil action in the district court brought by the child, or by its relatives within the third degree, or by the officers of the poor where the child resides; and when the abuse is established, the child may be freed from the dominion of the parent, and the duty of support and education enforced."

Counsel for plaintiff in error states in his brief that the only law in this state that would seem to recognize the old common law is to be found in the chapter on parent and child, the chapter from which the foregoing sections are taken; but, he contends, the old common-law idea that the parent has the exclusive control over the education of the child has long since been abandoned. We must find warrant for this statement in the statutory law of the state in order to agree with counsel in this contention. At common law the parent, and especially the father, was vested with supreme control over the child, including its education, and, except where modified by statute, that authority still exists in the parent. Board of Education of Cartersville et al. v. Purse, Next Friend, et al., 101 Ga. 422, 28 S.E. 896, 41 L. R. A. 593, 65 Am. St. Rep. 312. It is true that with the organization of the common school system throughout the state statutes have been passed modifying more or less the authority of the parent over the child in school matters. Before statehood the general control and management of the schools of this jurisdiction was under the general supervision and management of the superintendent of public instruction, and the district schools were under the immediate control of the district school boards. The district school boards, in so far as the branches of study to be followed in such schools after they had complied with the law requiring the studying of certain branches, might substitute any other studies that might be determined upon by them. The board was authorized under the statute to suspend from school pupils who were guilty of immoral conduct and continued violation of the rules of the school.

It is admitted that these laws in so far as they are not repugnant to the Constitution of the state nor locally inapplicable, are still in force; but counsel for plaintiff in error contends that, no matter what the rule may have been under the old territorial laws, there can now be no doubt that under sections 308, 311, 312, 313, and 314, Bunn's Ann. Const., the management of the public schools is absolutely turned over to the Legislature of the state, and that the compulsory education clause of the Constitution absolutely destroys the old common-law doctrine that the parent had the entire control over the education of his child, and that the uniform text-book law of the state absolutely places the course of study that is to be used in all the public schools in this state in the hands of a text-book commission. The sections of the Constitution referred to by counsel provide: (1) That the Legislature shall establish and maintain a system of free public schools wherein all the children of the state may be educated; (2) that it shall provide for the compulsory attendance at some public or other school, unless other means of education are provided, of all the children in the state who are sound in mind and body, between the ages of 8 and 16 years, for at least three months in each year; (3) that the supervision of instruction in the public schools shall be vested in a board of education, whose powers and duties shall be prescribed by law; and (4) that the Legislature shall provide a uniform system of text-books for the common schools of the state. To our mind the right of the board of education to prescribe the course of study and designate the text-books to be used does not carry with it the absolute power to require the pupils to study all of the branches prescribed in the course in opposition to the parents' reasonable wishes in relation to some of them. In Morrow v. Wood, 35 Wis. 59, 17 Am. Rep. 471, Mr. Justice Cole, in discussing a similar proposition, says: "It is unreasonable to suppose any scholar who attends school can or will study all the branches taught in them. From the nature of the case some choice must be made and some discretion be exercised as to the studies which the different pupils shall pursue. The parent is quite as likely to make a wise and judicious selection as the teacher."

It is no argument in favor of limiting the common-law authority and control of parents over their children to say that the exercise of such power may result disastrously to the proper discipline, efficiency, and well- being of the schools. It is to be presumed that a normal reasonable man will exercise such authority in a reasonable way. In Morrow v. Wood, supra, Mr. Justice Cole, upon this proposition, says: "We do...