Board of Ed. v. Sinclair, 268

• Decision Date: 14 October 1974
• Docket Number: No. 268,268
• Parties: BOARD OF EDUCATION, Respondent, v. William SINCLAIR, Appellant.
• Court: Wisconsin Supreme Court

Page 143

222 N.W.2d 143

65 Wis.2d 179

BOARD OF EDUCATION, Respondent, v. William SINCLAIR, Appellant.

No. 268.

Supreme Court of Wisconsin.

Oct. 14, 1974.

Ebbeson & Jonjak, Sturgeon Bay, for appellant.

J. D. McKay, Green Bay, for respondent.

DAY, Justice.

We conclude that public schools may sell or charge fees for the use of books and items of a similar nature when authorized by statute without violating Section 3, Article X, of the Wisconsin Constitution.

We are persuaded that when the framers of our constitution used the phrase 'free and without charge for tuition to all children . . .,' the word 'free' meant without cost for physical facilities and equipment; 'without charge for tuition' meant there should be no fee charged for instruction; ² and 'to all children . . .' meant such schools were equally available to all children within the district.

In reaching the conclusion that 'free' as used in Sec. 3, Art. X, Wis.Const., means 'without cost,' we look first to the plain meaning of the word in the context in which it is used. 'The legislature shall provide . . . for . . . district schools, . . . and such schools shall be free and without charge for tuition to all children . . .' Webster's Third New International Dictionary, unabridged, p. 905, 9a, defines 'free' as: '. . . not costing or charging anything (a free school) . . . b: given or furnished without cost or payment . . . admitted without payment . . .' However, with the addition of the words 'and without charge for tuition' there is a logical restriction on the scope of the word 'free.'

We conclude that 'free' referred to the school building and equipment. We arrive at this conclusion from an historical analysis of what practices were in existence in 1848 which we may reasonably presume were also known to the framers of the 1848 constitution. In State ex rel. Comstock v. Joint School District, etc. (1886), 65 Wis. 631, 636, 27 N.W. 829, 830, this court said:

'. . . the school-district system was in full operation in the territory when the constitution was framed and adopted, it is clear that section 3 of article 10 is a recognition of that system, and a mandate to the legislature to preserve and continue its essential features.'

In some places in the Wisconsin territory, it was not unusual for the community to furnish the building in which the school was conducted but then leave it up to the teacher to charge a tuition to each pupil to cover his salary. In Public Education in Wisconsin by Conrad E. Patzer published by the state superintendent of public instruction (1924), the author states, p. 5: 'Any community desiring a school could build one and engage a teacher, the expense of building and cost of maintenance being provided by private contributions. Sometimes a community built a school house and allowed the teacher to conduct a private school in it. . . . In such cases the teacher became responsible for collecting the money for his salary,' and again at p. 9, 'The so-called public schools, as they developed under the laws of 1839, 1840, 1841 and 1843, were not free public schools. The money needed for the maintenance of the schools came partly from taxes levied by the district, partly from the per capita tax, and partly from collections made by the public school teachers themselves.'

Thus it is reasonable to conclude that the framers of Sec. 3, Art. X, of the constitution, being familiar with the system of treating school buildings and equipment as one cost paid in one way and costs for instruction as a separate charge, intended that, first, there should be no charge to pupils for the use of the school building, its maintenance or the equipment therein; and second, that there would be no charge for the teacher's instruction. 'To discover that intent, reference may be had . . . to the history of the times, the state of society at the time . . . the Constitution was framed and adopted, and to prior well-known practices and usages . . .' State ex rel. Zimmerman v. Dammann (1930), 201 Wis. 84, 89, 228 N.W. 593, 595.

We turn next to the earliest interpretation of this section of the constitution by the legislature as manifested in the first law passed following the adoption of the constitution. Chapter 19, Revised Statutes (1849), provides:

'District Meetings . . . Sec. 11. The inhabitants qualified by law to vote at a school district meeting, when assembled at the first meeting in their district, or when lawfully assembled at any other district meeting shall have power, . . .

5. To vote such tax on the taxable property of the district as the meeting shall deem sufficient to purchase or lease a suitable site for a school house, and to build, hire or purchase such school house, and to keep in repair and furnish the same with the necessary fuel and appendages;

6. To vote a tax on the taxable property of the district of such sum as the meeting shall deem proper for the pay of teachers' wages in the district;

9. To vote a tax not exceeding twenty dollars in any one year, for the purchase of globes, black-boards, outline maps, or any other apparatus for illustrating the principles of agriculture, chemistry, or the mechanic arts;'

Sec. 28 thereof, p. 193, provided, in part: 'The district board shall provide the necessary appendages for the school house, and keep the same in good condition and repair, during the time a school shall be taught therein; . . .' The legislature made these grants of power to tax so that the school districts could carry out the constitutional mandate to provide school houses, keep them in repair and provide equipment and pay teachers. All this was to be done at no cost to the individual pupil.

As this court said in State ex rel. Pluntz v. Johnson (1922), 176 Wis. 107, 114, 115, 184 N.W. 683, 186 N.W. 729, 730, in reference to the right of certain county officers to hold over their terms until their successors shall be qualified:

'. . . evidence that such was the purpose of the framers of the Constitution appears by the fact that sec. 59.12 of the statutes, which provides that the county officers shall hold their offices until their successors qualify, first appeared in the statutes of this state as sec. 141 of chapter 10 of the Revised Statutes of 1849. This amounts to contemporaneous legislative construction of this constitutional provision, which construction is entitled to great deference.'

See also Payne v. Racine (1935), 217 Wis. 550, 558, 259 N.W. 437.

At the time the Wisconsin Constitution was adopted, it was not the custom for school districts to furnish free textbooks to pupils. The Founding of Public Education In Wisconsin (1956), Lloyd P. Jorgenson, p. 140, published by State Historical Society of Wisconsin. The only authority to purchase books given in 1849 was for indigent pupils and for school district libraries. Chapter 19, sec. 38, Revised Stats. (1849) provides:

'Sec. 38. The district board may purchase, at the expense of the district, when families or guardians may not be able to furnish the same, such school books as in their judgment may be necessary for the use of any children attending school in their district, and they may include the amount of such purchase in any tax list to be collected in such district.'

Section 83 provided:

'Sec. 83. So soon as the total annual income of the school fund of this state shall amount to a sum equal to or exceeding the sum of thirty thousand dollars, it shall be the duty of the superintendents of the several towns to appropriate and distribute annually ten per cent of all moneys received by their respective towns, to the several districts in such towns, to be applied by such districts to the purchase of school district libraries, which shall be the property of such districts, and the parents and guardians of all the children therein between the ages of four and twenty years, shall be permitted to use books from such library without charge, being responsible to the district for the safe return thereof, and for any injury done thereto, according to such rules and regulations as may be established by the state superintendent.'

The board in each school district had authority to designate the texts to be used by the pupils. Chapter 19, Revised Stats. (1849), sec. 39, provided:

'Sec. 39. The board in each school district shall have power, under the advice of the superintendent of public instruction, to determine what school and text books shall be used in the several branches taught in the school of such district.'

In spite of the fact that the board designated what textbooks a pupil must use, provision was made only to furnish books to indigents. There was no provision for furnishing pencils or writing materials to...