Merryman v. School District No. 16

• Decision Date: 24 November 1931
• Docket Number: 1698
• Citation: 43 Wyo. 376,5 P.2d 267
• Parties: MERRYMAN v. SCHOOL DISTRICT No. 16, ET AL
• Court: Wyoming Supreme Court

5 P.2d 267

43 Wyo. 376

MERRYMAN v. SCHOOL DISTRICT No. 16, ET AL

No. 1698

Supreme Court of Wyoming

November 24, 1931

APPEAL from the District Court, Crook County; HARRY P. ILSLEY Judge.

Action by John W. Merryman as a taxpayer of School District No. 16 of the County of Crook, Wyoming, against said district and the trustees thereof, to restrain them from leasing or permitting the use of property of the school district, either for hire or otherwise for dances, social entertainments or for any purpose other than school or educational purposes. There was a judgment for defendants and plaintiff appeals.

Affirmed.

For the appellant there was a brief by James T. McGuckin, of Sundance, Wyoming, and W. K. Somers, of Moorcroft, Wyoming and an oral argument by Mr. McGuckin.

The law requires the use of school property for school purposes only. 35 Cyc. 942. The use of school buildings for dances is against public policy. Lewis v. Bateman, 73 P. 509. There is no authority to permit the use of school buildings by parent-teachers' associations than by other organizations. Kingman v. Brockton, 11 L. R. A. 123 is analogous. In that case it was sought to use public tax money for the erection of a memorial hall for the Grand Army of the Republic, which was held to be unlawful. Sideshows carnivals and public dinners or luncheons are included in the same class. In Wisconsin, it was held that it was unlawful for meetings of the Sons of Temperance to be held. School Dist. v. Arnold, 21 Wis. 658. The use of school property is more restricted than municipal corporation property. 31 L. R. A. (N. S.) 588. The use of school buildings for political, religious or social gatherings is unauthorized by law. Spencer v. Dist., 15 Kan. 202; Scott v. Hart, 33 L. R. A. 118; George v. Dist., 6 Met. 510; Sugar v. Munroe, 59 L. R. A. 723; Herald v. Brd., 31 L. R. A. (N. S.) 588; Bender v. Streabich, (Pa.) 37 A. 853. Or the leasing of public school building to conduct a private school therein. Hysong v. Dist., (Pa.) 26 L. R. A. 203; Weir v. Day, 35 O. S. 143; Tyre v. Krug, L. R. A. (N. S.) 1915 C, 624. The trial court followed the rule in Amusement Synd. v. Topeka, (Kans.) 74 P. 606. But this case is against the overwhelming weight of authority. See Dillon on Mun. Corps., Fifth Ed., Vol. 4, Sec. 1581, approved in Crampton v. Zabriskie, 101 U.S. 601, and in Graves v. Dist., (S. D.) 50 N.W. 904; Pierce v. Hagans, (Ohio) 86 N.E. 519, 36 L. R. A. (N. S.) 1. The court erred in ruling that appellant was without right to maintain this action. It was unlawful to use public school property for dances, meetings, carnivals and activities from which taxpayers are excluded without payment of admission especially when such admission does not inure to the benefit of the school district. The trial court exceeded its authority in making an ex parte order modifying an injunction theretofore granted.

For the respondent there was a brief by E. C. Raymond, of Newcastle, Wyoming, and oral argument by Maurice L. Cohn, of Sheridan, Wyoming, for E. C. Raymond.

There is but one defendant and that is the school district. 2237-2275 C. S. Designation of individual members of the Board was unnecessary. The restraining order was allowed ex parte to defendant, and plaintiff cannot well complain of an ex parte modification thereof. 6181 C. S. 128 F. 720, 124 F. 156, 32 C. J. 432. Plaintiff has no legal right to commence this action. Amusement Co. v. Topeka, (Kas.) 74 P. 606; Worden v. New Bedford, 41 Am. Rep. 186; Cost v. Shinault, 166 S.W. 740; Harmon v. Driggers, 107 S.E. 923. The latter case involving use of school house for religious services. Dances may be held in school buildings. Brooks v. Elder, 189 N.W. 284. Cases cited by appellant do not follow modern thought on the subject, for example, Bonder v. Streabich, (Pa.) 37 A. 855. Prohibiting use of school buildings for religious services would prevent religious services in many farming and ranching communities in Wyoming. Appellant owns a hall that he leases out for dancing and other entertainment. He seeks to enjoin the use of the school house for dances and other entertainments because it comes in competition with the use of his hall for such purposes. Use of a school building for social entertainments other than school use was sanctioned by the electors of the district at their regular meeting. The use is legitimate if it does not interfere with the conduct of schools or injure property. Cost v. Shinault, supra, 23 Cyc. 819. Plaintiff has failed to show an interest peculiar to himself which will authorize him to maintain this action. The evidence shows that the rentals received for the use of the building have been devoted to educational interests.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This is a proceeding by direct appeal to review an adverse judgment against John W. Merryman rendered by the District Court of Crook County in an action wherein Merryman was plaintiff and School District No. 16 in the County of Crook and State of Wyoming, and O. J. Biggs, Peter Peterson and Inez C. Noonan, as members of the Board of Trustees of said School District, were defendants.

The relief sought in the District Court was an injunction against the defendants, restraining them from leasing or permitting the use of, either for hire or otherwise, the property of the aforesaid School District, for dances, social entertainments by persons or organizations charging admission fees, or for any other purpose than strictly school or educational purposes. The facts established by the proofs taken in the case before the court without a jury, and upon which the plaintiff requested that the relief desired be granted, are substantially these:

That School District No. 16 in Crook County, Wyoming, is a school district duly organized pursuant to state law, and the individual defendants above named are its board of trustees and officers; that during the years 1929 and 1930, the said district, by means of the issuance of its bonds pursuant to law, borrowed money to the extent of $ 28,000, and erected a school building additional to that already owned and controlled by it; that, as stated in the notice of the bond election, the bonds aforesaid were issued and the money obtained for "the purpose of constructing and furnishing a new school building upon the school grounds in the town of Moorcroft in said district, and to repair the existing school building thereon and provide the same with necessary and suitable sanitary and other conveniences and equipment;" that the plaintiff Merryman is a resident, taxpayer and voter in the town of Moorcroft, said town being in School District No. 16; that he is the owner of a small dance hall, which he hires for dances, public meetings and social gatherings; that since the erection of the new school building hereinabove mentioned, he has received no revenue from his hall through hiring the same to local people, although prior to that time his hall was occasionally rented by local organizations; that early in the year 1930, the Board of Trustees of the School District leased the newly erected school building to the Knights of Pythias Lodge for the purpose of holding a dance one evening, charging the lodge the sum of $ 10 therefor, this amount more than repaying whatever expense for lights, fuel, etc., was thereby incurred by the district; that the dance thus held was an orderly, law-abiding gathering and the building was in no wise injured by it; that so far as dances are concerned, the school building has not affected plaintiff's building at all. Plaintiff testified that one of the members of the board stated to him that they were going to continue to have dances in the building, this statement being made to plaintiff at the time he made protest concerning their action in allowing the fraternal organization aforesaid to have the use of the building--but this board member, himself a witness, denied making any such statement.

It was also established that with the consent of the Board of Trustees of the School District, an organization known as the Parent Teachers Association has, probably once a month, held meetings in the new building, on one occasion putting on a "carnival" or show, at which an admission fee was charged any person who desired to attend; that the board has made no charge to said association for light, heat or the use of the building; that the association intends in the future to continue to hold its meetings in the school building as it has in the past, and to sell lunches prepared with school equipment to those who attend the meetings, making thereby enough money to pay for the lunch itself and, perhaps, a very small profit; that the Parent Teachers Association of Moorcroft is an organization composed of the patrons and teachers of the schools and also of people who have no children in school but who are interested in education; that the object of this association is to see that the school at Moorcroft is properly and carefully conducted; that the entertainment given by the association in no way injured the school building, and the money raised by it was used to purchase a curtain for the stage in the auditorium of the school building.

The proofs further established that basket ball games participated in both by the students of the Moorcroft school and students from other schools of the state of Wyoming, are held in the auditorium or general assembly room of the school building, which can be and is used by the school children of the school district as a gymnasium; that at such games an admission fee is charged to those persons who desire to attend them; that physical training is a part of the curriculum of the school, although the playing of basket ball itself is...