"This
action is brought on behalf of the state of Kansas, on the
relation of the attorney general, against the board of
education of the city of Topeka, to enjoin the issuing of $
85,000 worth of bonds, which bonds, it is alleged, are to be
issued for the purpose of buying a high-school site and
erecting a high-school building. It is claimed on behalf of
the plaintiff that the board of education has no power to
erect a building thereon. It is claimed on behalf of the
board of education that it has such power; that it has
complied with the law, and that it should now be permitted to
go on and issue these bonds. It is contended on behalf of the
plaintiff, that the matter of submitting this proposition
amounted to a constructive fraud in this: That when the
proposition was submitted to the voters as to whether or not
they would vote for or against the bonds, certain sites were
designated upon the ticket, and the price of each indicated
and that it was the understanding that the board should
purchase the site receiving the greatest number of votes, and
at the price indicated; that is, it would purchase the site
receiving the largest number of votes at the price indicated
on the ticket. It is claimed that that amounted to a
constructive fraud; not actual fraud, but that the effect of
it was not to allow a fair and impartial expression of the
voters upon the proposition. The case of Lewis v. Comm'rs
of Bourbon Co., 12 Kan. 186, is cited to sustain that
position. In that case, there were railroad bonds to be
issued to two railroads to be voted for, and the proposition
was so framed that the voter could not vote for one railroad
proposition without voting for both, and the supreme court
held in that case that that was not permitting a free and
fair expression of the people upon the proposition submitted.
But that is not this case. Here the main question was the
issuance of the bonds. They were voting for or against the
bonds, and the remainder of the ticket was simply taking an
expression of the voters as to which one of the sites, in
their opinion, was the proper one for the board to purchase.
Now, it seems to me that this was a proper matter to be
submitted to the people. The voters had a right, or ought to
have a right, as far as they can, to say where the school
shall be located -- in what part of the city. It is claimed
that this induced persons to come out and work for the bonds
and possibly brought out a larger vote than otherwise would
have been brought out. I think that is true. But the
expression of the voter at the time he cast his vote was his
expression either for or against the bonds. There is nothing
to show in this case that the voter was influenced in any way
by the fact that certain sites were selected, and would be
built upon if the bonds carried. The court is of the opinion
that that position is not well taken.
"Again,
it is claimed that the election law under which this election
was held is imperfect, in this: That there is no provision
for canvassing the vote and declaring the result. This is
substantially true; but the courts will be slow to interfere
with the will of the people, where it is shown that there was
a fair election, and that the only question is the question
of canvassing the vote and declaring the result. There is no
claim that there was any fraud on account of the manner in
which the vote was canvassed. There is no claim but that
there was a true and correct canvass of the vote, as in fact
taken on the day of the election. This being true, the court
is of the opinion that it should not interfere where there
has been a fair expression of the people upon the
proposition. When the polls close at night, the proposition
is either won or lost, and the only thing that remains to be
done is to declare the result; and, if that result is
declared, and correctly, too, it makes but little difference
as to the manner of arriving at the result, if a fair canvass
of the vote is had. In this case, the council canvassed the
vote. But it is claimed that they should have canvassed the
vote at the first meeting after the election. There was a
meeting of the council, but at the first meeting there was
not a quorum present, and they adjourned sine die. It is
claimed that after that they could not canvass the vote; and,
while nothing had been said on the discussion of this
question, yet a good deal had been said one way and another
in reference to the Rosenthal case (50 Kan. 129), decided by
our supreme court, applying to this case upon this
proposition; but there is this distinction between that case
and this: There, the canvassing board had met, and, after
performing its whole duty, had adjourned; here, the
canvassing board had met, but for want of a quorum had
adjourned. Now, it is a settled proposition, that if it is
the duty of a body of men to canvass the vote, and they meet
and adjourn without doing that which they are required to do
by law, the court will by mandamus compel them to meet and
act. The court will not control their action, but will compel
them to act. In this case no action had been taken, and if
the city council had refused to canvass the votes, and
adjourned without canvassing them, upon proper showing, the
court would by mandamus compel them to meet and canvass the
vote, without attempting to control the result. If the courts
could do this, then the council could certainly come together
after that, and canvass the vote; because that which they
could be compelled to do by mandamus they could voluntarily
do. The court is of opinion that that position is not well
taken.
"We
come next to the real question in this case, and that is,
whether any power exists in the board of education to
maintain a high school. Our constitution is not like any
other constitution that the court or the attorneys on either
side in this case have been able to find. It provides for a
uniform system of common schools and other schools of a
higher grade. It is contended on behalf of the plaintiff in
this case that the title of the act authorizing the issuing
of these bonds is, 'An act pertaining to common
schools,' and that the school building the board of
education proposes to build in this case is a high school,
and that there is a distinction between a common school and a
high school, and that the title of an act applying 'to
common schools' has no application to high schools, and
therefore, the board has no authority to act in the premises.
It is contended on behalf of the board of education that the
building of this school is simply a part of the general
system of common schools. While the expression 'high
school' is used, where the building is separate from the
other buildings, and different branches are taught, yet it is
claimed that it is a part of the general system of common
schools. The question is not an easy one. It is a question
that might be decided either way, and good reasons given for
the decision. But the serious question is, where shall the
courts draw the line between 'common schools' and
'high schools' and say this branch belongs to the
common, and this to the high school? We all know as a matter
of experience that all of the different branches now taught
in the common schools were not taught years ago. We know that
algebra was a thing unknown in the common school when most of
us went to school; that physiology, bookkeeping, physical
geography, music, and quite a number of other branches that
could be named, were never taught in our school days in the
common schools. Yet, they are now the most ordinary branches,
taught in almost all of the common schools, and recognized by
the public as a proper and legitimate exercise of the control
of the board of education and district boards. As we advance,
our school systems advance; and what is taught now possibly
in a few years will not be taught in our common schools, and
other branches will take their places. And the question
arises, does it lie in the power of the courts to say where
the dividing line shall be between the common school and the
higher branches?
"According
to the evidence in this case, the board of education of the
city of Topeka has divided the schools of this city into 12
branches or years. These different branches are taught in
different school buildings; some in one, some in another. In
the same school building, in different rooms, different
branches are taught; and when they have reached the eighth
grade, then they go into what is denominated the 'high
school,' and are there taught the four grades covering
that department. Does it lie within the power of the courts
to say that the dividing line between the common and high
school is between the eighth and ninth grades, and say up to
this grade is 'common,' beyond this is
'high'? If the court...
