Bond v. Public Schools of Ann Arbor School Dist., 5

• Decision Date: 17 July 1970
• Docket Number: No. 5,5
• Parties: , 41 A.L.R.3d 742 Lillian BOND and Daniel Fusfeld, on behalf of themselves and all parents of children attending the elementary and secondary schools of the Defendant School District, Plaintiffs-Appellants, and Frank J. Kelley, Attorney General of the State of Michigan, Intervenor-Appellant, v. The PUBLIC SCHOOLS OF the ANN ARBOR SCHOOL DISTRICT, a municipal corporation, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 484

178 N.W.2d 484

383 Mich. 693, 41 A.L.R.3d 742

Lillian BOND and Daniel Fusfeld, on behalf of themselves and all parents of children attending the elementary and secondary schools of the Defendant School District, Plaintiffs-Appellants and Frank J. Kelley, Attorney General of the State of Michigan Intervenor-Appellant, v. The PUBLIC SCHOOLS OF the ANN ARBOR SCHOOL DISTRICT, a municipal corporation, Defendant-Appellee.

No. 5.

Supreme Court of Michigan.

July 17, 1970.

Douvan, Harrington & Carpenter, by Arthur E. Carpenter, Ann Arbor, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Eugene Krasicky and Gerald F. Young, Asst. Atty. Gen., Lansing, for intervenor-appellant.

Roscoe O. Bonisteel, Roscoe O. Bonisteel, Jr., Richard B. Bailey, Ann Arbor, for defendant-appellee.

Before BRENNAN, C.J., and DETHMERS, KELLY, BLACK, T. M. KAVANAGH, ADAMS and T. G. KAVANAGH, JJ.

PER CURIAM.

I. Statement of Facts

Plaintiffs sued defendant School District, a municipal corporation, on their own behalf and on behalf of all other parents of school children attending the elementary and secondary schools of defendant. They designated their action as a class suit and sought a judgment requiring the district to permit all qualified children to enroll and attend school without payment of any fees or the purchase of any books, supplies, or equipment incident to any portion of the curriculum or other recognized school activity; an injunctive order restraining defendant from assessing or collecting any fees and from requiring the purchase of any books, supplies or equipment by children entitled to attend its schools; and a judgment ordering defendant to refund to the members of the plaintiff class all sums assessed to and collected from the members or their children as general fees commencing with the fall term of 1966 and continuing for each semester thereafter until the injunctive relief against such fees was granted.

Plaintiffs' demands were based on the provisions of Article 8, § 2, Constitution of 1963.

Plaintiffs conceded in their amended complaint 'that no children to the knowledge of the Plaintiffs are refused admittance or expelled from the Defendant's schools for failure to pay said fees.' Plaintiffs claimed, however, that large amounts were illegally collected by defendant from its pupils as general fees, so-called, determined pursuant to a schedule adopted by the Board of Education of defendant. Student fees were deposited in the general fund of the School District, the same as tax revenues, but were identified by a separate account.

Plaintiffs also challenged the legality of defendant's action in collecting for materials tickets in specialized courses such as photography, art, home economics and industrial arts, and the imposition of interscholastic athletic fees. Defendant explained the materials ticket as a card which the student purchased at the general office. As materials were used, the teacher punched out the amount on the card. Any resulting product was the property of the student.

The trial court adjudged the general fees to be illegal and in violation of Article 8, § 2, Constitution of 1963. By a judgment filed May 10, 1968, it permanently enjoined defendant from assessing or collecting any general fees as then established from the children or their parents for attendance in the elementary and secondary schools of the District. Refund of the general fees collected since commencement of plaintiffs' suit was denied. The trial judge denied relief from the requirement that children of the plaintiff class purchase textbooks, miscellaneous supplies, and equipment, holding that there was no conflict with the Constitution's requirement of free education. He found the materials tickets system as then established to be in violation of the Constitution and permanently enjoined defendant from requiring any of its students to pay any fees for materials tickets as a condition of enrollment in any class offered by defendant. Refund of amounts expended for materials tickets was denied. The trial court struck down the interscholastic athletic fees as unconstitutional and issued a permanent injunction against further collection. No refund had been requested and none was allowed.

Plaintiffs appealed those portions of the circuit judge's decision regarding the purchase of textbooks and school supplies and the denial of the refund. Defendant did not file a cross-appeal. The Court of Appeals affirmed the decision of the lower court (18 Mich.App. 506, 171 N.W.2d 557). We granted leave to appeal (382 Mich. 787). Plaintiffs request here a determination that defendant is without power under our present Constitution to require that pupils in the elementary or secondary schools furnish books and supplies at their own expense; that defendant be enjoined from requiring or requesting any student enrolled in any course or recognized school activity to furnish any textbooks or supplies at his own expense; and a judgment for the full amount of the general fees collected, aggregating $140,862, together with interest, with remand to the circuit court for administration of the judgment in accordance

with this Court's opinion. II. The

Meaning of the Word 'Free' in Article 8, § 2,

Constitution of 1963.

Does the word 'free,' as used in Article 8, § 2, Constitution of 1963, mean free books and supplies to students in attendance at public elementary and secondary schools? Article 8, § 2, reads as follows:

'The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin.'

Article 11, § 9, Constitution of 1908, provided in pertinent part as follows:

'The legislature shall continue a system of primary schools, whereby every school district in the state shall provide for the education of its pupils without charge for tuition; * * *.'

Because there was no specific discussion at the Constitutional Convention of 1961 of the reasons for the use of the word 'free' in Article 8, § 2, Constitution of 1963, the trial judge and the Court of Appeals concluded that there was merit in defendant's contention that to adopt a concept of complete and total subsidizing of pupils would have required persuasion and extended discussion at the convention. Since there was almost no discussion of the provision, those courts concluded that the word 'free' did not include textbooks and school supplies.

The first rule a court should follow in ascertaining the meaning of words in a constitution is to give effect to the plain meaning of such words as understood by the people who adopted it. See People ex rel. Twitchell v. Blodgett (1865), 13 Mich. 127, 141, 167; People v. Board of State Canvassers (1949), 323 Mich. 523, 528--529, 35 N.W.2d 669; and Michigan Farm Bureau v. Secretary of State (1967), 379 Mich. 387, 390--391, 151 N.W.2d 797.

The word 'free' is susceptible of various meanings, depending upon the context in which it is used. As the word is used in Article 8, § 2, Constitution of 1963, however, it clearly means without cost or charge and must have been so commonly understood by the people.

Since we hold that the meaning of the word 'free' is plain, as used in Article 8, § 2, Constitution of 1963, it is not necessary to resort to extrinsic evidence to determine the meaning of that word.

The question still remains, however, as to whether books and supplies are necessary to a system of free public elementary and secondary schools. In the case of Paulson et al. v. Minidoka County School District No. 331 et al. (1970), 93 Idaho 469, 463 P.2d 935, a school district had adopted a fee schedule charging each student $25.00, with $12.50 being itemized for textbooks and $12.50 being itemized for school activities. Plaintiff refused to pay the fee. Upon his graduation, the school district refused to furnish him a transcript of courses studied and grades achieved. Plaintiff brought suit to compel the school district to furnish him a transcript, claiming that the $25.00 fee violated Article 9, § 1, of the 1890 Idaho Constitution, which provides:

'The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, Free common schools.' (Emphasis added.)

The Idaho Supreme Court said (pp. 938--939):

'Textbooks are necessary elements of any school's activity. They represent a fixed expense peculiar to education, the benefits from which inure to every student in equal proportion (ignoring differences in ability and motivation) solely as a function of his being a student. Unlike pencils and paper, the student has no choice in the quality or quantity of textbooks he will use if he is to earn his education. He will use exactly the books, prescribed by the school authorities, that his classmates use; and no voluntary act of his can obviate the need for books nor lessen their expense. School books are, thus, indistinguishable from other fixed educational expense items such as school building maintenance or teachers' salaries. The appellants may not charge students for such items because the common schools are to be 'free' as our constitution requires.'

The test adopted by the Idaho Supreme Court--'necessary elements of any school's activity'--is a sound construction of the meaning of the word 'free,' as used in the Idaho Constitution.

Upon trial of this case, plaintiff class sought to introduce evidence of the importance of textbooks to the educational system of this State by means of the testimony of Robert Trezise of the Michigan Department of Education. The following occurred:

'THE COURT: The Court would take judicial notice and I believe we have had testimony that...