Brooks v. Elder

• Decision Date: 12 June 1922
• Docket Number: 21953
• Citation: 189 N.W. 284,108 Neb. 761
• Parties: HARRY A. BROOKS ET AL., APPELLANTS, v. ORA E. ELDER ET AL., APPELLEES
• Court: Nebraska Supreme Court

189 N.W. 284

108 Neb. 761

HARRY A. BROOKS ET AL., APPELLANTS, v. ORA E. ELDER ET AL., APPELLEES

No. 21953

Supreme Court of Nebraska

June 12, 1922

APPEAL from the district court for Lincoln county: HANSON M. GRIMES JUDGE. Affirmed.

AFFIRMED.

William E. Shuman, for appellants.

Evans & Evans, contra.

Heard before MORRISSEY, C. J., ROSE and ALDRICH, JJ., HOBART and PAINE, District Judges.

OPINION

PAINE District Judge.

The plaintiffs and appellants are residents of and taxpayers of the school district of North Platte, and upon January 15, 1921, filed a petition for an injunction against the defendants and appellees, who are the members of the board of education of said school district. The relief sought was a permanent injunction restraining the defendants forever from permitting the high school building, known also as the "Franklin School," or any of the school buildings in said district from being used for dancing. Bond of $ 500 being approved, the district court upon said date issued a restraining order fixing January 31, 1921, as the time when the defendants were to show cause why a temporary injunction should not be issued. Upon said date oral evidence was introduced by plaintiffs and four affidavits submitted by the defendants, upon which the court directed that the temporary restraining order be dissolved, but, in addition, passed finally upon the case and denied the injunction and dismissed the action at the costs of the plaintiffs. Thereupon the plaintiffs moved the court to vacate the order so made, for the reason that the only question for hearing on said date had been whether a temporary injunction should be issued, and contend that the court was without jurisdiction to hear, try or determine said action upon the merits or to dismiss the same, which motion was overruled and the plaintiffs appealed to this court.

The evidence discloses that, during the voting of bonds for the construction of said building something over 12 years ago, one of the arguments advanced was that said high school building would contain a large assembly room to be used for school and community purposes; that said building had in it a large assembly room or auditorium in size 90 feet by 65 feet which has been used upon over 1,000 nights for every sort of athletic, social, patriotic, and recreational purpose; that among the uses to which it has been put have been lectures, community gatherings, parties, institutes, Twentieth Century Club meetings, school of music, chautauquas, community choruses, minstrel shows, theatrical entertainments, and during the war for every form of patriotic advancement, including its use for several months as a barrack for the company of soldiers raised at North Platte. For each and all of these events, lights and janitor service as well as heat in the winter time were furnished by the taxpayers of the school district; that the board of education received applications from some of the parents to permit supervised dancing to keep their children from attending public dances with their miscellaneous crowds and no supervision, and that vigorous protests came in from other parents who objected to dancing in any form as a recreation and asked the board to prohibit the same; that long and careful study and discussion was given to the matter by the board during a period of several years, and at last the board decided to permit dancing under three general rules, with minor conditions, as follows:

"1st. No general policy permitting dancing in the auditorium would be allowed by the board of education. 2d. No dancing would be permitted at any function attended by all students. 3d. Dancing would be permitted for one and one-half hours under the following conditions: Written permission must be obtained from the secretary of the board of education. It must be announced in advance that there would be dancing at the party. Members of the board of education must be present. A number of the parents of the children taking part must be present. The welfare board should always be invited. There must be some program other than dancing to occupy part of the evening."

During the first year after these rules were adopted some three dances were allowed. The secretary of the board objected strenuously to the use of the word dances, and said that dancing was only a part of the program at the five parties at which it had been allowed in two years, and that she had attended all of the parties and danced at each one.

The superintendent of schools testified that at parties where dancing had been allowed the same decorum had been enforced as in homes when dancing is allowed, and that the majority of the pupils and their parents approved of such parties for the reason that the general public were never admitted.

The president of the board of education admitted the contention of the plaintiffs that parents of children of high school age were caused much worry with their children, and says "The complaint of the plaintiffs that the permitting of these dances has caused hard feelings and turmoil in the homes of those objecting to dances seems to this affiant to be a condition unavoidable. This affiant is well aware that there is some mental anxiety for all parents raising families in any community, but he doubts if it has been increased by any of the parties in the Franklin auditorium by reason of dancing." The president continues that there are those who object to dancing as a recreation and there are those who object to every form of amusement or exercise now recognized as regular school functions, such as swimming, football, basketball, cadet military...