Litchman v. Shannon

• Decision Date: 07 March 1916
• Docket Number: 13209.
• Citation: 155 P. 783,90 Wash. 186
• Court: Washington Supreme Court
• Parties: LITCHMAN et al. v. SHANNON et al., Board of Regents of University of Washington, et al.

155 P. 783

90 Wash. 186

LITCHMAN et al.

v.

SHANNON et al., Board of Regents of University of Washington, et al.

No. 13209.

Supreme Court of Washington

March 7, 1916

Department 2. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Suit by Mark M. Litchman and others against William A. Shannon and others, composing the Board of Regents of the University of Washington, and others. From a judgment of dismissal plaintiffs appeal. Affirmed.

Jacob Kalina, Thos. F. Murphine, and Mark M. Litchman, all of Seattle, for appellants.

W. V Tanner, Atty. Gen., and Edward W. Allen, Asst. Atty. Gen for respondents.

HOLCOMB, J.

The Legislature of 1915 passed an act entitled:

'An act for the support of the University of Washington and relating to the erection and equipment of two buildings at the university, making appropriations therefor and providing a system of student fees and creating a building fund.' Laws 1915, p. 239.

The act provides that the university shall charge each student an entrance fee of $10, and a tuition fee of $10 per semester or $20 per annum. This money is to be set aside in the state treasury in a fund called the 'University of Washington Building Fund,' for the purpose of constructing two buildings. Appellants seek a reversal of the judgment of dismissal, which followed their election to stand upon their complaint to which respondents' demurrer had been sustained. In form the suit was an action for injunction to restrain the authorities of the University of Washington from carrying into effect the provisions of the act heretofore mentioned. The legal proposition involved is the constitutional power of the Legislature to require students at the University of Washington to pay matriculation or tuition fees.

Appellants contend that the act in question is in violation of the fourth paragraph of article 26, Constitution of Washington, as follows:

'Provision shall be made for the establishment and maintenance of systems of public schools free from sectarian control, which shall be open to all the children of said state * * *'

--and of section 1, art. 9, as follows:

'It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex'

--and also section 2, art. 9, as follows:

'The Legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established. * * *'

They further contend that it is repugnant to section 12, art. 1, Constitution: 'No law shall be passed granting to any citizen, class of citizens, or corporation, other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.'

Appellants allege that they are of such age that they are entitled to enter the university; that they are desirous of doing so; that they are unable to pay the fees; that they are children of wage-earning parents belonging to that class of people one-half of whom earn less than $500 per year; that they have an earning capacity of less than $10 per week; that because of their class and condition, the fees provided for by this act are prohibitive to them, and they are therefore unable to attend the university. They further allege that, at another institution of higher education of the state, viz., the State College of Washington located at Pullman, students are not required to pay any matriculation and tuition fees, and that therefore the system of education provided by the legislation in force is not uniform, and that it discriminates in favor of those students attending the State College at Pullman.

The question to be determined is simply and only a question of constitutional and legislative power. We have so frequently held, in substance, as in State v. Ide, 35 Wash. 576, 77 P. 961, 67 L. R. A. 280, 102 Am. St. Rep. 914, 1 Ann. Cas. 634, that the courts will presume that an act regularly passed by the legislative body of the government is a valid law, and will entertain no presumptions against its validity, and when the constitutionality of an act of the Legislature is drawn in question, the courts will not declare it void unless its invalidity is so apparent as to leave no reasonable doubt upon the subject, that that may be considered as the settled policy of the courts of Washington. Appellants argue that the provision for the establishment and maintenance of systems of public schools free from sectarian control, which shall be open to all the children of the state, constitutes a limitation upon legislative power, in that any part of the educational system of the state shall be considered a part of the public schools, and that the mandate that they shall be open to all the children of the state means that they shall be free to all the children of the state. It is perhaps advisable to review briefly the history of the University of Washington, the legislation in regard thereto, and the matter the Constitution makers had in view when they adopted the provisions of the Constitution relating thereto.

The state university was inaugurated as a territorial university in 1861. On November 4th of that year it was opened for students. The first comprehensive act for its regulation was passed January 24, 1862. Section 12 of that act (Laws 1861-62, p. 45) is as follows:

'The fee of admission to the regular university course in the department of literature, science and the arts, shall not exceed ten dollars, but such course or courses of instruction as may be arranged under the provisions of section nine of this act, shall be open without fee, to the citizens of this territory.'

The Laws of 1877, page 241, provided an appropriation to pay for 45 scholarships, free of tuition, at the university, the appointments to be made by the members of the Legislature. By Act of 1883 (Laws, p. 68), a similar provision was made. In 1886 (Laws 1885-86, p. 149, § 5), it was provided:

'Each member of the legislative assembly of this territory may appoint one person, who may attend the university without payment of any tuition. * * * All persons attending the university as students, outside of the county of King, during each school year, shall have deducted from their tuition the actual cost of their going to, and returning from said university to their respective homes.'

The act of January 27, 1888 (Laws 1887-88 p. 232), contains like provisions.

The Constitution was adopted in 1889, and there is no provision in it that the entrance to or tuition of the University shall be free or otherwise.

Immediately following the adoption of the Constitution, in 1890 (Laws 1889-90, p. 397, § 10), the Legislature provided that the board of regents was authorized to prescribe regulations for the admission of students, and prescribe such rates of tuition as it might deem expedient; and further provided that students residing outside the county of King should have deducted from their tuition their traveling fares. In 1893, for the first time apparently (Laws 1893, p. 293, § 6), the Legislature provided that:

'* * * Tuition in the university, except as may be provided by the regents with reference to the arts or to special courses of study, shall be free to all bona

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