I. O. O. F. Of W. Va. v. Bd. Of Educ.

• Decision Date: 17 January 1922
• Citation: 90 W.Va. 8
• Parties: I. O. O. F. of W. Va. v. Board of Education.
• Court: West Virginia Supreme Court

90 W.Va. 8

I. O. O. F. of W. Va.

v.Board of Education.

Supreme Court of Appeals of West Virginia.

Submitted January 11, 1922.

Decided January 17, 1922.

1. Mandamus Directors of Fraternal Organization's Orphans' Home May Maintain Mandamus Against Board of School Directors to Secure Admission of Children to Schools.

Under Barnes' Code, 1918, chapter 55-A, sections 32-b I and *32-b II, authorizing grand louges of fraternal organizations to establish homes for the care and support of orphans, to adopt and prescribe rules for the control of such homes, and to appoint from their own memberships boards of directors with corporate powers, and giving such boards so created authority to sue, mandamus may be maintained by such a board of 'directors to secure admission of children admitted to such home or homes to the public schools where such home or homes are located. (p. 12).

2. Schools and School Districts When Contract to pay Tuition for Children of Orphans Home Becomes Nudum Pactum.

A fraternal organization, organized under Barnes' Code, 1918, chapter 55-A, section 32-b I, established outside an independent school district a home for the care and support of orphans of its deceased members, and to obtain the benefit of free schools in said district for the children admitted to the home, contracted with the board of education of the district to pay tuition, whether the home should be included within the said district or not. Subsequently the boundaries of the district were extended so as to include the home; the children of the home became entitled to attend the schools of said district without payment of tuition, said contract becoming a mere nudum pactum, without consideration and no longer binding on the fraternal organization. (p. 12).

3. Same A Child Need Not Have Legal Domicile Where Public School is Located, to Entitle it to Attend.

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, (p. 15).

4. Same Temporary Residence Not Solely for Benefit of Schools, and With Intention of Removal Thereafter Entitles a Child to Attend Without Paying Tuition.

The residence necessary to entitle a child to attend public schools without payment of tuition is not such as would be required to establish a right to vote, or which would fix the liability for the support of a pauper, or for the purpose of determining the right of administration of its estate, but a residence even for a temporary purpose, not solely to enjoy the benefits of the free schools and with the intention of removal as soon as that purpose is accomplished, is sufficient, (p. 15).

5. Same Every Child Entitled Without Paying Tuition to Attend Schools of District in Which Actually Residing Whether or Not Legal Domicile of Parents or Guardian. Every child in this state is entitled without payment of tuition to attend the public schools in the district in which it actually resides for the time being, whether that be its legal domicile or the legal domicile of its parents or guardian or not. (p. 15).

6. Same Inmates of Orphans' Home May Attend Schools of District in Which Home is Situated Without Paying Tuition or Presenting Transfers.

Under the statute requiring that schools be open to all youths between the ages of six and twenty-one for the full length of the school term provided in that district, inmates of an orphans' home within an independent school district, whose custody and care has been surrendered to such home by their parents or guardian, having no other home, and residing there permanently, though admitted there from other school districts of the state, are actual residents of such independent school district, and have a right to attend the public schools of such district without payment of tuition, and without presenting transfers from the boards of education of the several districts whence they came to the board of such independent district. (p. 16).

Error to Circuit Court, Randolph County.

Petition by the Grand Lodge of the Independent Order of Odd Fellows of West Virginia against the Board of Education of the Independent School District of Elkins and Boyd Wees and another, members of said board, and W. W. Trent, superintendent of schools of said district, for peremptory writ of mandamus to compel the admission of children from the petitioner's orphans' home to the public schools of said district, in which an alternative writ was issued, to which the defendants demurred. Demurrer sustained, writ quashed, and, judgment entered against the petitioner, and the petitioner brings error.

Reversed and writ of mandamus awarded.

W. B. & E. L. Maxwell, and 8. P. Bell, for plaintiff in error.

Samuel T. Spears, for defendant in error.

Meredith, Judge:

The petitioner applied by petition for a peremptory writ of mandamus against the Board of Education of the Independent School District of Elkins, Boyd Wees and Dr. C. H. Hall, the only members of said Board, and W. W. Trent,

superintendent of schools of said district, alleging that the Grand Lodge of the Independent Order of Odd Fellows of "West Virginia, under authority of chapter 55-A, section 32-b, Barnes Code, 1918, has acquired about 100 acres of land near the city of Elk ins and has established a home thereon for "the care and support of the orphans and widows of deceased members and of disabled and aged members of said organization in indigent circumstances," and has admitted thereto 126 children between the ages of six and twenty-one years, as well as other persons eligible thereto, and that said Home is located within the boundaries of said Independent School District, and that said children are residents of said school district and are entitled to attend the public schools therein; that some of said children may have no parents living, and as to the large majority thereof one of such parents is dead, and when the children of a deceased parent are placed in said Home they are placed there under the absolute care and control of the proper authorities of said Grand Lodge, the living parent or parents releasing all claim over the care and custody of said children; that all of said children since the 12th day of September, 1921 (that being the opening date of the schools of said district for the present school year) have been excluded from said schools by the defendants because the petitioner refused to pay the tuition demanded by said defendants, no tuition being required of other children residing in said school district. Petitioner also shows that said children were regularly enumerated by the school authorities as required by law.

An alternative writ was issued returnable October 4, 1921, to which the defendants entered a demurrer, made a motion to quash and also made return.

Petitioner demurred to said return and the circuit court, without passing on the sufficiency of the return, sustained defendants' demurrer, quashed the writ and rendered judgment for costs against petitioner. The case is here to be heard upon its merits.

Defendants present three defenses:

First, that the petitioners, S. B. Hart, J. D. Silcott, Henry Woody, S. P. Bell and S. M. Kendall, comprising the Board of Directors of said Home, and appointed as such by said Grand Lodge to manage said Home according to the rules and regulations adopted by said Grand Lodge, do not show that they have been authorized to bring this proceeding. This objection has not been insisted upon in the argument, but we think it sufficiently appears that they have immediate control of said Home and the children therein, and that they have the right to maintain this action in the name of the Grand Lodge.

Second, that said Home was originally outside the boundaries of said Independent School District and that the Legislature in 1915 enacted a statute authorizing the extension of said boundaries so as to include said Home within said school district upon a vote of the people therefor, and that before such vote was had in 1916, to-wit, on July 29, 1915, said Grand Lodge and said Board of Education entered into a written contract whereby it was agreed that upon the annual payment to said Board of Education by said Grand Lodge of a sum equal to one-half of the annual cost of instruction of said children of said Home in the public schools of Elkins, as ascertained and certified to by said Board, said payment beginning with and including the school year 1913-14, said children resident of said Home should be permitted to attend the public schools of said Independent School District without further charge, whether said Home should be included in said Independent School District or not, the cost for instruction per capita to be based each year on the enrollment in the schools as shown by the official school records; that said Grand Lodge paid according to said contract for all years prior to and including the school year 1918-19, but refused to pay for the school years 1919-20 and 1920-21, and that said Board was willing to carry out said...