Detch v. Board of Ed. of Greenbrier County

• Decision Date: 22 November 1960
• Docket Number: No. 12070,12070
• Court: West Virginia Supreme Court
• Parties: Ethel R. DETCH, an Infant, Who Sues by Rosalle S. Detch, Her Next Friend, v. BOARD OF EDUCATION OF the COUNTY OF GREENBRIER, a Corporation, and The West Virginia Board of Education, a Corporation.

Page 138

117 S.E.2d 138

145 W.Va. 722

Ethel R. DETCH, an Infant, Who Sues by Rosalle S. Detch, Her Next Friend, v. BOARD OF EDUCATION OF the COUNTY OF GREENBRIER, a Corporation, and The West Virginia Board of Education, a Corporation.

No. 12070.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 10, 1960.

Decided Nov. 22, 1960.

Syllabus by the Court

1. The determination of the educational policies of the public schools of the State is vested in The West Virginia Board of Education, and, unless unreasonable or arbitrary, its actions relating to such policies will not be controlled by the courts.

2. A rule promulgated by The West Virginia Board of Education to the effect that youths arriving at the age of six years subsequent to the first day of November after the commencement of a school term shall not be enrolled for the remainder of such term, is not unreasonable or arbitrary, but is valid.

3. Code, 18-5-15, as amended, properly applied, does not preclude The West Virginia Board of Education from promulgating and enforcement a rule denying a child who reaches the age of six years subsequent to the commencement of a school term the right to attend a public school for the remainder of such term.

4. Ordinary, the actions of a legislature cast no light on the intent of a statute enacted by a prior legislature.

John L. Detch, Lewisburg, for relator.

Edgar L. Smith, Lewisburg, W. W. Barron, Atty. Gen., Virginia Mae Brown, Asst. Atty. Gen., for respondents.

GIVEN, Judge.

This original mandamus proceeding presents the question of the validity of a resolution or rule promulgated by The West Virginia Board of Education, fixing the date after which a child reaching the age of six years during a particular school term, can not be enrolled in school for the remainder of such term. The proceeding is disposed of on the petition of the relator, Ethel R. Detch, an infant who sues by Rosalie S. Detch, her next friend; the answer of the respondent The West Virginia Board of Education; the answer of the respondent Board of Education of the County of Greenbrier; the demurrer of relator to the answer of The West Virginia Board of Education; exhibits filed with the respective pleadings; on stipulation of facts; and on briefs and oral arguments of the respective parties.

The child was born November 3, 1954, and no question is presented as to her right to be enrolled in the public school in the county and school of her vicinage, except that relating to the rule promulgated by The West Virginia Board of Education. The rule was promulgated in 1958, and amended in September, 1959. After pertinent recitals, as amended, it reads: 'Therefore, be it resolved by the West Virginia Board of Education that the school entrance age, beginning with the school term 1960-61, shall be 6 years of age prior to November 1 of the current school year.' Because of the existence of the rule, and for the reason that the material birthday of the child would fall on a day subsequent to November 1, 1960, the Board of Education of Greenbrier County denied the child the privilege of entrance to the public schools of that count for the current school year, 1960-61.

Section 1 of Article XII of our State Constitution reads: 'The Legislature shall provide, by general law, for a thorough and efficient system of free schools.' By the 1958 Amendment of Section 2 of [145 W.Va. 724] Article XII of our State Constitution, The West Virginia Board of Education is created and vested with 'The general supervision of the free schools of the State * * *', and it is required to 'perform such duties as may be prescribed by law'.

Code, 18-2-5, as amended, provides that 'Subject to and in conformity with the constitution and laws of this State, the state board of education shall determine the educational policies of the State * * * and shall make rules for carrying into effect the laws and policies of the State relating to education, including rules relating to the physical welfare of pupils * * * school attendance, evening and continuation of part-time day schools * * * the general powers and duties of county boards of education, and of teachers, principals, supervisors and superintendents, and such other matters pertaining to the public schools of the State as may seem to the state board to be necessary and expedient.'

Code, 18-5-15, as amended, dealing with county or district boards of education, not with The West Virginia Board of Education, after providing that the 'minimum term for both elementary and high schools shall be nine months', further provides that 'The school shall be open to youths between the ages of six and twenty-one for the full school term provided in each district * * *'. It is the last sentence of Section 15, just quoted, that seemingly affords particular emphasis to the contention of relator.

Other statutory provisions which may have some pertinency include Code, 18-5-18, as amended, providing that any district board of education may provide for kindergartens for children 'between the ages of four and six years'; Code, 18-7-10, as amended, providing for 'A statewide school census of all youths aged four to twenty years inclusive as of September first of the year in which taken * * *'; and Code, 18-8-1, as amended, providing that 'Compulsory school attendance shall begin with the seventh birthday and continue to the sixteenth birthday', subject to certain exceptions.

It is not contended, of course, that The West Virginia Board of Education can be denied its constitutional powers of 'general supervision of the free schools', or that any legislative enactment attempts to do so. Neither is it contended that The West Virginia Board of Education has no power to promulgate reasonable rules for the 'general supervision' of the free schools, and no contention is made that the language of the rule adopted is of doubtful meaning or is ambiguous. The question involved, therefore, is narrowed to whether the rule complained of is in conflict with the pertinent statutory provision, Code, 18-5-15, as amended, providing that the schools of the State shall be open 'to youths between the ages of six and twenty-one for the full school term'.

Though the question, in one form or another, has caused much concern in the State, it has not before reached this Court in form for an authoritative answer. In I. O. O. F. of West Virginia v. Board of Education, 90 W.Va. 8, 110 S.E. 440, 441, 48 A.L.R. 1092, this Court held: '3. Public schools are required by the statute to be maintained for all persons within the school district over the age of six and under twenty-one years, and it is not essential to the right of a child to attend a public school that it should have a legal domicile in the place in which the school is located.' The question there involved, however, related to the domicile of a certain child, not to the age at which the child was entitled to attend school.

The question as it related to a similar resolution, promulgated by the prior or statutorily created West Virginia Board of Education, was presented to the Attorney General of this State and, in an opinion dated February 11, 1953, 45 Biennial Report and Opinions of the Attorney General, page 222, after stating the question, and after referring to the pertinent statutory provisions, he concluded: 'We believe the Board has authority under Code, 18-2-5, quoted above, to enact regulations on matters of this nature. It is a question of policy within the rule making and regulating power of the State Board whether a child below the age of six but who shall attain that age during the school year should be permitted to enter school at the beginning of the school year. We believe the Board within its discretion may set a date falling during the school year by which a child must have reached the school age of six in order to be permitted to enter at the beginning of the school year. Such regulation must be consistent with the provisions of Code, 18-5-15, providing that school shall be open to youths between the ages of six and twenty-one for the full school term.

'In conclusion it is our opinion that the West Virginia Board of Education has authority to enact a regulation governing the permissive age of children to the public schools of West Virginia within the limitations mentioned above.'

In a very recent case, State ex rel. Ronish v. School District No. 1 of Fergus County, Mont., 348 P.2d 797, 800, a very similar question, if not precisely the same question, was involved. The Court pointed out that the Constitution of that State provided that 'The public free schools of the state shall be open to all children and youth between the ages of six and twenty-one years', Const. art. 11, § 7, and that the pertinent statute provided: 'Every public school not otherwise provided for by law shall be open to the admission of all children between the age of six and twenty-one years * * *', R.C.M.1947, § 75-2004, and held valid a rule fixing a 'cut-off' date as to children arriving at the age of six years subsequent to the date of the commencing of the current school term, saying: 'We are mainly concerned, as the Legislature and the framers of the Constitution must have been, with the welfare of the children of this state. Does a child who was born on March 10, benefit by being put into the first grade for two and one-half months prior to the end of the school year in May or June? The answer, of course, depends upon the particular child, but it must be kept in mind that the rest of his...