Ballou v. Kemp, 6888.

• Decision Date: 09 August 1937
• Docket Number: No. 6888.,6888.
• Citation: 92 F.2d 556
• Parties: BALLOU v. KEMP.
• Court: U.S. Court of Appeals — District of Columbia Circuit

92 F.2d 556 (1937)

BALLOU v. KEMP.

No. 6888.

United States Court of Appeals for the District of Columbia.

Decided August 9, 1937.

Elwood H. Seal, Corporation Counsel, and Vernon E. West, Assistant Corporation Counsel, for appellant.

Robert E. Lynch, of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

STEPHENS, Associate Justice.

In this case the appellee, Lois Kemp, an infant who sues through her father and guardian John S. Kemp, seeks the issuance of a writ of mandamus against the appellant Frank W. Ballou, Superintendent of Schools in the District of Columbia, to compel him to admit her as a pupil in the public schools of the District and to compel him to direct that she be taught free of tuition.

The case arose as follows: John S. Kemp and his daughter are both residents of the County of Arlington in the State of Virginia, but John S. Kemp is employed in the District by the United States government. Upon the opening of the session of the public schools in the District in September 1936, Mr. Kemp presented his daughter for registration and admission as a pupil in the Gordon Junior High School, one of the public schools in the District. The principal of that school, acting under the direction of the appellant, denied the daughter admission to the Gordon Junior High School or to any of the public schools in the District. She then commenced this action in the District Court of the United States for the District of Columbia. She alleged in her petition for a writ of mandamus the facts above set forth, and she founded her asserted right to the writ upon D.C.Code 1929, tit. 7, § 163, 38 Stat. 910, which provides that:

"All pupils whose parents are employed officially or otherwise in the District of Columbia shall be admitted and taught free of charge in the schools of said District."

The appellant answered the petition. In his answer he admitted the facts pleaded by the appellee and admitted the existence of the statute quoted, but he denied that he had failed to comply with the statute. In further defense, he alleged in his answer that: At the time of the appellee's application for admission to the public schools of the District of Columbia in September 1936, she had completed the sixth grade of such schools and therefore, if entitled to enrollment at all, would be entitled to enrollment in the seventh grade, which is in the junior high schools. Congestion existed in many of the elementary public schools of the District, but especially in the junior high schools. This congestion was the result of a large and unanticipated increase in the population of the District during a period of years preceding the school year for which the appellee sought admission, 1936-37. This increase in population caused a substantial increase in the school enrollment.¹ According to proper educational standards, the average ratio of pupils to teachers in a school system the size of that of the District should be not to exceed 26 to 1. Approximately that ratio (26.1 to 1) prevailed in the school year 1926-27, but owing to the increase in pupils and the failure of Congress to appropriate money for additional teachers, the ratio at the beginning of the school year 1936-37 was 30.1 to 1. The number of pupils enrolled in the junior high schools for the school year 1936-37 was in excess of capacity and in excess of the number enrolled in the school year 1935-36. Under appropriations made available for the public schools, funds were not provided to furnish sufficient classrooms, teachers, textbooks and supplies to accommodate the enrollment in junior high schools of children of nonresident parents employed in the District. The appellant had reported to the Board of Education of the District the congested condition of the schools, and the necessity for increased appropriations for the purpose of providing sufficient facilities for the education of children of both resident and nonresident parents, and these estimates were submitted to the Commissioners of the District. But as a result of the depression, and also as a result of reduction in the amount of the Federal contribution towards the support of the District, the revenues of the District decreased. To admit to the public schools of the District the children of nonresident parents other than in accordance with a policy below mentioned would result in depriving the children of parents resident in the District of the proper school facilities, in the overcrowding of classrooms and classes, in the reduction of hours of instruction, in the elimination of postgraduate work in high schools, and generally in serious curtailment of the educational program. As a matter of policy therefore, on account of the foregoing, no children of nonresident parents were enrolled for the school year 1936-37 in the junior high schools except such children as had been previously enrolled therein. In addition to the appellee, two other children whose parents were employed in the District but who resided outside, had applied for admission to the seventh grade and had been denied admission.²

To this answer the appellee filed a demurrer. Upon consideration of the demurrer the trial court sustained it, and the appellant then elected to stand on his answer. Judgment that the writ of mandamus issue was accordingly entered, and from that judgment this appeal was taken. By the assignment of errors two questions are presented for determination: first, are the words of the pertinent statute mandatory; if they are, then second, did the facts alleged in the answer and admitted by the demurrer require the trial court to refuse to issue the writ.

1. If the words of a statute are plain there is ordinarily nothing to construe. The intent of the legislature will be found from the words. If, however, words in themselves plain are inconsistent with the spirit or purpose of an act, they may be construed harmoniously therewith. Also, if extreme hardship will result from a literal application of the words, this may be taken as evidence that the legislature did not use them literally. For such reasons as these permissive words may be given a mandatory meaning and mandatory words a permissive one. These rules are elementary. In general text statements they are expressed and applied as follows:

"The word `shall' in its ordinary sense is imperative. `When the word "shall" is used in a statute, and a right or benefit to any one depends upon giving it an imperative construction, then that word is to be regarded as peremptory.' But the intent of the act controls, and when the spirit and purpose of the act require the word `shall' to be construed as permissive it will be done. . . ." Lewis' Sutherland Statutory Construction, 2d ed., 1904, p. 1155

"Whether the language of a statute is imperative or merely permissive depends on the intention as disclosed in the nature of the act and in the context. Although the words of a statute are merely permissive, directory, or enabling, they may nevertheless have the force of words of command where the power or duty to which they relate is for the advancement of public justice or the security and protection of public or private rights. . . . The word `shall' in a statute may be construed as `may' where the connection in which it is used or the relation into which it is put with other parts of the same statute indicates that the legislature intended that it should receive such a construction; but if any right to anyone depends on giving the word an imperative construction, the presumption is that the word was used in reference to such right or benefit. `Shall' ought undoubtedly to be construed as meaning `must' for the purpose of sustaining or enforcing an existing right, or when a public body is directed to do certain acts." 25 R.C.L. § 15, pp. 767-769

For illustration of the application of these rules by courts see Bay State Street Railway Co. v. Woburn, 232 Mass. 201, 122 N.E. 268; also United States v. Two Hundred and Sixty-Seven Twenty Dollar Gold Pieces (D. C.) 255 F. 217.

The statutory provision immediately pertinent to the appellee's claimed right of admission to the schools is undoubtedly mandatory, if the words therein are taken literally, and is also quite without ambiguity. It says simply: "All pupils whose parents are employed officially or otherwise in the District of Columbia shall be admitted and taught free of charge in the schools of said District." It is a part, under the title "Education," of the chapter on tuition of nonresidents, in the Code of the District of Columbia. We find nothing in the spirit or purpose of the chapter with which a literal meaning of the words used in Section 163 is inconsistent. The whole of the chapter is brief and is as follows:

"Chapter 5. — Tuition of Nonresidents.

"Section 161. Payment of tuition by nonresidents; Board of Education to fix amount of tuition; payments deposited in Treasury. — Except as otherwise provided in this chapter pupils shall not be admitted to or taught free of charge in the public schools of the District of Columbia who do not reside in said District, or who during such tutelage do not own property in and pay taxes levied by the government of the District of Columbia in excess of the tuition charged under this section to other nonresident pupils, or whose parents do not reside or are not engaged in public duties therein, or during such tutelage pay taxes levied by the government of the District of Columbia in excess of the tuition charged under this section to other nonresident pupils: Provided, That any other nonresident pupil may be admitted to and taught in said public schools on the payment of such amount, to be fixed by the board of education with the approval of the Commissioners of said District, as will cover the expense of tuition and cost of textbooks and school supplies used by such pupil; and all payments under this section...