Lynch v. Comm'r of Educ.

• Decision Date: 14 September 1944
• Citation: 56 N.E.2d 896,317 Mass. 73
• Parties: LYNCH et al. v. COMMISSIONER OF EDUCATION et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 73

56 N.E.2d 896

LYNCH et al.

v.COMMISSIONER OF EDUCATION et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 14, 1944.

Reservation from Supreme Judicial Court, Suffolk County; Walsh, Judge.

Bill in equity by Arthur W. Lynch and another against Julius E. Warren, Commissioner of Education of the Commonwealth, and others, to enjoin defendants from imposing any charge for instruction and for books and supplies in a teachers college. A judge of the superior court entered an order that a decree should be entered granting the plaintiffs the relief prayed for and reserved the suit for consideration by the Supreme Judicial Court upon the pleadings, statement of agreed facts and the order for final decree.

Order for final decree reversed in accordance with opinion.

Before FIELD, C. J., and QUA, DOLAN, and WILKINS, JJ.

M. H. Sullivan and R. E. Sullivan, both of Boston, for plaintiffs.

Roger Clapp, Asst. Atty. Gen., for respondents.

DOLAN, Justice.

By this bill in equity the plaintiffs seek to enjoin the defendant Julius E. Warren, commissioner of education of the Commonwealth, ‘from imposing any charge for instruction and for books and supplies on’ the plaintiffs ‘or either of them for the right of the’ plaintiff Marie Lynch (a minor in whose name and behalf the plaintiff Arthur W. Lynch, her father, also brings the bill) ‘to take the courses for which she has matriculated’ in the teachers college located at Framingham or in any other of the State teachers colleges in which she may matriculate, and to enjoin the defendant Martin O'Connor, president of the State teachers college at Framingham, ‘from collecting any charge for instructions and for books and supplies on’ the plaintiffs ‘or either of them for the right of the’ plaintiff Marie to take the courses at that college. The bill also seeks to enjoin the defendant members of the department of education in like manner. The plaintiffs are both inhabitants and residents of Boston. The case was heard before a judge of the Superior Court upon the pleadings and a statement of agreed facts. After hearing the judge entered an order that a decree be entered granting the plaintiffs the relief prayed for in the bill, and then reserved the suit for consideration by this court upon the pleadings, the statement of agreed facts and the order for final decree.

The material facts are these: There are nine teachers colleges established and maintained by the Commonwealth and among them is one located at Framingham which was established in 1839 as a normal school. The teachers colleges at Westfield and Bridgewater were established in 1839, that at Salem in 1854, that at Worcester in 1874, and those at North Adams, Fitchburg, Lowell and Hyannis in 1894, that is, as of those dates they were established as normal schools. By St.1932, c. 127, § 1, the designation of State normal schools was changed to State teachers colleges. The plaintiff Marie Lynch matriculated at the teachers college at Framingham prior to the opening of the school year on September 13, 1943. She was informed by its president that she would be required to pay an annual fee of $75, payable one half on or before September 15, 1943, and the remaining half on or before February 1, 1944, and that, in accordance with the further direction of the department of education, unless these payments were made she could not continue in the college. The president of the college also informed her that during the college year she would be expected to equip herself with the necessary books and school supplies, which would cost approximately $35, as set forth in a bulletin of information entitled ‘expenses.’ No fee is payable to the college for such books and school supplies, there being no requirement of the department of education to that effect. The plaintiffs made no payment of the tuition fee and under a stipulation none is to be required of them pending the determination of this suit.

Prior to 1919 the sole and exclusive charge of the institutions here involved was exercised by the board of education created in 1837 (St. 1837, c. 241). By St. 1919, c. 350, §§ 56-58, the board of education was abolished and its powers and duties were transferred to the department of education created by said c. 350. See now G.L.(Ter.Ed.) c. 15, § 1. That section provides as follows: ‘There shall be a department of education, in this chapter called the department, which shall be under the supervision and control of a commissioner of education, in this chapter called the commissioner, and an advisory board of education of six members, in sections one to six, inclusive, called the board, of whom at least two shall be women and one shall be a school teacher of the commonwealth.’ The specific provisions relative to the power of the department of education with respect to the State teachers colleges is now embodied in G.L.(Ter.Ed.) c. 73, § 1, as amended by St. 1932, c. 127, § 10, which reads as follows: ‘The department of education, in this chapter called the department, shall have general management of the state teachers colleges at Barnstable, Bridgewater, Fitchburg, Framingham, Lowell, North Adams, Salem, Westfield and Worcester, and the Massachusetts school of art at Boston, wherever said colleges may be hereafter located, and of any other state teachers colleges hereafter established, and of boarding houses connected therewith, and may direct the expenditure of money appropriated for their maintenance.’ In 1902, by Res. c. 65, now G.L.(Ter.Ed.) c. 73, § 6, authority was given the department of education to receive as pupils in the State normal schools non-residents of Massachusetts upon payment of tuition fees. These institutions were conducted without charge for tuition or school supplies, including books, to residents of Massachusetts until September 1, 1925. The entire cost of tuition, books and school supplies for the pupils was borne by the Commonwealth for the purpose of procuring young men and women to receive training which might fit them to teach in the public schools of Massachusetts. The Commonwealth has annually made appropriations for the maintenance of these institutions, such annual appropriations totaling over a million dollars. In addition the Commonwealth has appropriated annually not less than $4,000 and not over $10,000 to aid needy students to pay living expenses.

On September 1, 1925, the department of education voted to charge a fee of $10 to each student in the State teachers college. In 1928 this fee was increased to $20, in 1932 to $50, in 1939 to $70, and in 1941 to $75. This fee of $75 was the amount the plaintiff was asked to pay in two instalments (one on her matriculation) as a condition of receiving tuition at the Framingham teachers college, and is the sum that the defendants claim she was required to pay for tuition. The sums collected from students both resident and non-resident as tuition have been paid into the treasury of the Commonwealth by the department of education and became part of the general revenues. The total of such sum from 1925 to 1942, inclusive, amounted to $2,160,108.60 and the receipt by the department of sums as tuition was set forth in the annual reports to the Legislature by the commission on administration and finance as provided by G.L. (Ter.Ed.) c. 7, § 33. Prior to 1932 books and similar necessary school supplies had been furnished free to the pupils. In 1932 the department of education voted to discontinue furnishing books and supplies to the students who ‘may buy them when and where they choose.’

There is nothing in the contention of the plaintiffs that the Constitution of the Commonwealth provides for free education not only in common schools but also in higher institutions of learning such as teachers colleges. Part II, c. 5, § 2, of the Constitution dealing with ‘The Encouragement of Literature,’ etc. imposes upon the Legislature the duty of spreading ‘the opportunities and advantages of education in the various parts of the country, and among the different orders of the people * * * [and of cherishing] the interests of literature and the sciences, and all seminaries of them * * *.’ Articles of Amendment 18 and 46 deal with the expenditure of moneys for the support of ‘common schools.’ No provision is to be found in the Constitution with respect to free education in the higher institutions of learning. ‘Common schools' or ‘public schools' embrace only the grade schools and high schools. These terms ‘are never applied to the higher seminaries of learning, such as incorporated academies and colleges.’ Merrick v. Amherst, 12 Allen 500, 508, 509. In Jenkins v. Andover, 103 Mass. 94, 98, the court, quoting Cushing v. Newburyport, 10 Metc. 508, 511, said: ‘The establishment of schools for the education, to some extent at least, of all the children of the whole people, is not the result of any recent enactment; it is not the growth even of our present constitutional government, or the provincial government which preceded it, but extends back two hundred years, to the early settlement of the colony. Indeed, the establishment of popular schools is understood to have been one of the objects for which powers were conferred on certain associations of persons living together in townships, enabling them to regulate and manage certain prudential concerns in which they had a common interest.’ And in the Jenkins case, the court referring to the Constitution of the Commonwealth, Part II, c. 5, § 2, requiring ‘the legislature and the magistrates, among other things, to ‘cherish’ ‘public schools and grammar schools in the towns'’ said, “Public schools,' as those words are used in the Constitution and laws of Massachusetts are not limited to schools of the lowest grade. * * * In the general laws of the Commonwealth, for years before the adoption of the eighteenth amendment of the Constitution, the words ‘public schools' were used as including all schools, from...