23 N.E. 946 (Ind. 1890), 15,350, State, ex rel. Clark v. Haworth, School Trustee of Monroe School Township, Howard County

Docket Nº:15,350
Citation:23 N.E. 946, 122 Ind. 462
Opinion Judge:Elliott, J.
Party Name:The State, ex rel. Clark, v. Haworth, School Trustee of Monroe School Township, Howard County
Attorney:L. T. Michener, Attorney General, J. H. Gillett, J. Morris, J. M. Barrett, M. Garrigus, J. O. Moore, J. C. Blacklidge, W. E. Blacklidge, B. C. Moon, J. S. Duncan, C. W. Smith, S. Claypool and W. A. Ketcham, for appellant. J. O'Brien, C. C. Shirley, A. C. Harris and W. P. Fishback, for appellee.
Judge Panel:Elliott, J. Olds, J. Berkshire, J. Olds Berkshire
Case Date:March 13, 1890
Court:Supreme Court of Indiana

Page 946

23 N.E. 946 (Ind. 1890)

122 Ind. 462

The State, ex rel. Clark,


Haworth, School Trustee of Monroe School Township, Howard County

No. 15,350

Supreme Court of Indiana

March 13, 1890

From the Howard Circuit Court.

Judgment reversed, with instructions to proceed in accordance with this opinion.

L. T. Michener, Attorney General, J. H. Gillett, J. Morris, J. M. Barrett, M. Garrigus, J. O. Moore, J. C. Blacklidge, W. E. Blacklidge, B. C. Moon, J. S. Duncan, C. W. Smith, S. Claypool and W. A. Ketcham, for appellant.

J. O'Brien, C. C. Shirley, A. C. Harris and W. P. Fishback, for appellee.

Elliott, J. Olds, J. Berkshire, J.


Page 947

[122 Ind. 464] Elliott, J.

The questions presented and argued in this case do not require us to do more than outline the pleadings, for the questions are general ones involving the validity and construction of a statute. It is sufficient to bring the questions clearly enough before the mind for investigation and consideration to say, that the relator petitioned for a writ of mandate to compel the appellee, as school trustee of Monroe township, in the county of Howard, to certify to the county superintendent of schools the number of text-books required by the children of the township for use in the public schools, and to procure and furnish such books as the law requires; and that the return of the appellee to the alternative writ is so framed as to present the question of the constitutionality of the act of March 2d, 1889, and, also, the question as to the duties of the school trustee under that act. Elliott's Supp., section 1289; Acts of 1889, p. 74.

[122 Ind. 465] The act assailed does not impinge in the slightest degree upon the right of local self-government. The right of local self-government is an inherent, and not a derivative one. Individualized, it is the right which a man possesses in virtue of his character as a freeman. It is not bestowed by legislatures, nor derived from statutes. But the courts which have carried to its utmost extent the doctrine of local self-government have never so much as intimated, that it exists as to a matter over which the Constitution has given the law-making power supreme control, nor have they gone beyond the line which separates matters of purely local concern from those of State control. Essentially and intrinsically the schools in which are educated and trained the children who are to become the rulers of the commonwealth are matters of State, and not of local jurisdiction. In such matters, the State is a unit, and the Legislature the source of power. The authority over schools and school affairs is not necessarily a distributive one to be exercised by local instrumentalities; but, on the contrary, it is a central power residing in the Legislature of the State. It is for the law-making power to determine whether the authority shall be exercised by a State board of education, or distributed to county, township, or city organizations throughout the State. With that determination the judiciary can no more rightfully interfere, than can the Legislature with a decree or judgment pronounced by a judicial tribunal. The decision is as conclusive and inviolable in the one case as in the other, and an interference with the legislative judgment would be a breach of the Constitution which no principle would justify, nor any precedent excuse. But we need not rest our conclusion that the control of schools and school affairs is vested in the law-making power of the State, upon the proposition that schools are intrinsically matters of State concern, and not of a local nature--although it may there be securely rested--for our Constitution, in language that can [122 Ind. 466] not be mistaken, declares that it is a matter of the State and not of the locality. The language of the Constitution is this: "Knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government, it shall be the duty of the General Assembly to encourage by all suitable means, moral, intellectual, scientific, and agricultural improvement, and to provide, by law, for a general and uniform system of common schools, wherein tuition shall be without charge, and equally open to all." Article VIII, section 1. The Constitution enjoins a duty and confers a power. The duty and the power are coextensive, but the object they are designed to accomplish is unified, because the duty is to "provide, by law, for a general and a uniform system of common schools," and the power is granted to enable the General Assembly to effectively perform the duty. Both by the Constitution and by the intrinsic nature of the duty and the power, the authority is exclusively legislative, and the matter over which it is to be exercised solely of State concern. That this conclusion is sound, is so clear, that authorities are not required to fortify or support it, but authorities are not wanting, for the current of judicial decisions is unbroken. State, ex rel., v. School Directors, etc., 74 Mo. 21; State, ex rel., v. Board, etc., 35 Ohio St. 368; School Commissioners, etc., v. State Board, etc., 26 Md. 505; Robinson v. Howard, 84 N.C. 151; Stuart v. School District, No. 1, etc., 30 Mich. 69; Ford v. Kendall Borough School District, 121 Pa. 543, 15 A. 812; People, ex rel.,

Page 948

v. Board, etc., 101 Ill. 308; Richards v. Raymond, 92 Ill. 612 (34 Am. R. 151); Powell v. Board, etc., 97 Ill. 375; Briggs v. Johnson County, 4 Dill. 148, 4 F. Cas. 120; Rawson v. Spencer, 113 Mass. 40; Commonwealth v. Hartman, 17 Pa. 118. Judge Cooley has examined the question with care, and discussed it with ability, and he declares that the Legislature has plenary power over the subject of the public schools. He says, in the course of his discussion, that: "To what degree the Legislature shall provide for the [122 Ind. 467] education of the people at the cost of the State or of its municipalities, is a question which, except as regulated by the Constitution, addresses itself to the legislative judgment exclusively." Again, he says: "The governing school boards derive all their authority from the statute, and can exercise no powers except those expressly granted and those which result by necessary implication from the grant." Const. Lim. (5th ed.) 225, note 1. No case has been cited by counsel, and none has been discovered by us, although we have searched the reports with care, which denies the doctrine that the regulation of the public schools is a State matter exclusively within the domain of the Legislature.

If it be true that the power is a legislative one, then it is indisputably true, that the courts can not control the legislative discretion. This principle is elementary in constitutional law, and it needs no support from precedents or decisions; but the principle has been so well expressed by Mr. Justice Bradley that we quote his language. Replying to an argument that the mode in which the power was exercised was improper, this great judge said: "The answer is, the legislative department, being the nation itself, speaking by its representatives, has a choice of methods, and is the master of its own discretion." Legal Tender Cases, 79 U.S. 457, 12 Wall. 457, 20 L.Ed. 287 (561). We have adopted and applied this rule, and, indeed, we could not depart from it, without a disregard of principle, that no decision or precedent would excuse. Hancock v. Yaden, 121 Ind. 366, 23 N.E. 253.

As the power over schools is a legislative one, it is not exhausted by exercise. The Legislature having tried one plan is not precluded from trying another. It has a choice of methods, and may change its plans as often as it deems necessary or expedient; and for mistakes or abuses it is answerable to the people, but not to the courts. It is clear, therefore, that even if it were true, that the Legislature had uniformly entrusted the management of school affairs to local organizations, it would not authorize the conclusion, that [122 Ind. 468] it might not change the system. To deny the power to change, is to affirm that progress is impossible, and that we must move forever "in the dim footsteps of antiquity." But the legislative power moves in a constant stream, and is not exhausted by its exercise in any number of instances, however great. It is not true, however, that the authority over schools was originally regarded as a local one; on the contrary, the earlier cases asserted that the Legislature could not delegate the power to levy taxes for school purposes to local organizations, but must itself directly exercise the power; thus denying, in the strongest possible form, the theory of local control. This ruling was, for many years, regarded as the law of the State; but in the case of Robinson v. Schenck, 102 Ind. 307, 1 N.E. 698, it was held that the Legislature might either exercise the power itself, or delegate it to local governmental instrumentalities. It has, indeed, been the uniform course since the organization of the State, to regulate and control school affairs by legislation. All the public schools have been established under legislative enactments, and all rules and regulations have been made pursuant to statutory authority. Every school that has been established owes its existence to legislation; and every school officer owes his authority to the statute.

It is impossible to conceive of the existence of a uniform system of common schools without power lodged somewhere to make it uniform, and, even in the absence of express constitutional provisions, that power must necessarily reside in the Legislature. If it does reside there, then that body must have, as an incident of the principal power, the authority to prescribe the course of study and the system of instruction that shall be pursued and adopted, as well as the books which shall be used. This general doctrine is well entrenched by authority. Hovey v. State,...

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