Powell v. the Bd. of Educ.

• Citation: 1881 WL 10419,37 Am.Rep. 123,97 Ill. 375
• Parties: WILLIAM H. POWELL et al.v.THE BOARD OF EDUCATION, ETC.
• Decision Date: 03 February 1881
• Court: Supreme Court of Illinois

97 Ill. 375

1881 WL 10419 (Ill.)

37 Am.Rep. 123

WILLIAM H. POWELL et al.

v.THE BOARD OF EDUCATION, ETC.

Supreme Court of Illinois.

Filed at Mt. Vernon Feb. 3, 1881.

APPEAL from the Appellate Court for the Fourth District;--heard in that court on appeal from the Circuit Court of St. Clair county.

Messrs. WILDERMAN & HAMILL, and Mr. R. A. HALBERT, and Mr. J. M. DILL, for the appellants.

Messrs. G. & G. A. KŒRNER, for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

We have given this case that full and careful consideration its importance demands, and find that our views on the questions raised may be stated without any very elaborate discussion. The bill was brought by a number of tax payers, against the board of education of the school district in which they reside and in which their property is situated, to enjoin what they allege is a misappropriation of the school funds of the district.

The principal allegations of the bill upon which is based the right of relief, are:

First.--That complainants are advised, as a matter of law, the board of education has no power to prescribe any studies, in common schools established in such district, other than the branches of education prescribed in the qualifications for teachers, viz: orthography, reading in English, penmanship, arithmetic, English grammar, modern geography, the elements of the natural sciences, history of the United States, physiology and the laws of health, and such other branches of an English education, including vocal music and drawing, as the board of education, or the voters of the district at the annual election of directors, may prescribe. And--

Second.--That the board of education, without power or authority of law, as complainants are advised, are using the common schools of the district for instruction in the branches of a German education, and have employed teachers to teach, and who are teaching, in such schools German orthography, German reading, German penmanship and German grammar, and are misappropriating and diverting the common school funds and the funds derived from complainants and other tax payers in the district for the support of common schools in such district, to the teaching of such German branches.

It is admitted by defendants, that the German language is one of the branches taught in the schools of the district under their direction, but it is denied it is done without authority of law, or that it is any misappropriation of the common school funds.

It is also set up in the answer, the teaching of the German language in the schools of the district does not increase the expenses of the district one dollar; that the same number of teachers now employed would necessarily be employed whether the German language is taught or not; that instructions in the English branches are not allowed to suffer on account of teaching German; that at an election for members of the board of education, held in April, 1878, the question of teaching the German language as it is now taught was made an issue at the polls, and such question was decided by a majority of over two hundred votes in favor of teaching such language in the schools of the district, and that the German language has been taught in the schools of the district, without objection, for more than fifteen years.

Answers to specific interrogatories propounded in the bill disclose a few facts it may be well to state, in order to a clear understanding of the case in all its bearings. According to reports of teachers, the number of pupils participating in German instruction is from 80 to 90 per cent of the pupils enrolled for the years covered by this controversy. All pupils receive instructions in the English branches taught in the schools. Participation in the German instruction is optional with the parents of the pupils. All teachers giving instruction in German teach English branches in their respective classes. The time occupied in giving instruction in German, in the first or lowest grade, is thirty minutes, and in all other classes it is one hour per day. On the hearing in the circuit court, the bill was dismissed, and that decree was affirmed in the Appellate Court. As the case was submitted on bill and answer, the facts alleged in the answer will be taken as true.

But one question arises on the record, as the case comes before this court, and that is whether the board of education, under existing laws, have any rightful authority to allow the teaching of the German language as one of the branches to be taught in the schools of the district.

Section 1, article 8, of our present constitution declares: “The General Assembly shall provide a thorough and efficient system of free schools, whereby all the children of the State may receive a good common school education.” This section of the constitution is mandatory, and, at the same time, it is a limitation upon the power of the General Assembly. So far as it makes it the duty of the legislature to establish “a thorough and efficient system of free schools,” it is mandatory. But the latter clause of the section is a limitation upon the power of the legislature as to the character of education to be afforded by the system of free schools to be established and maintained. It is not a grant of power, as was said in Richards v. Raymond, 92 Ill. 612, for the General Assembly needed no grant of power to enable it to enact any laws that might be deemed necessary to advance the welfare of the people of the State. It is apprehended, if it were not for the limitations contained in the section cited, and also in the third section of the same article of the constitution, the legislature might enact any law deemed most beneficial to the people of the State, on the subject of schools and general education. But those sections fix limits in two particulars beyond which the legislature may not go, and of course all inhibited legislation on the subject of education would be void.

Observing the constitutional restriction, the General Assembly can only establish a “system of free schools” that will afford “a good common school education.” But what is “a common school education?” As the constitution is silent on the subject, it is evidently left to the wisdom of the General Assembly to declare what would constitute such an education. No doubt that body would be bound to conform to the popular understanding of what constitutes “a common school education.” Without being able to give any accurate definition of a “common school,” it is safe to say the common understanding is, it is a school that begins with the rudimental elements of an education, whatever else it may embrace, as contradistinguished from academies or universities devoted exclusively to teaching advanced pupils in the classics, and in all the higher branches of study usually included in the curriculum of the colleges.

The act of 1872, which is the last revision of the School law, enacts that every school established under its provisions “shall be for the instruction in the branches of education prescribed in the qualifications for teachers, and in such other branches, including vocal music and drawing, as the directors, or the voters of the district, at the annual election of directors, may prescribe.” The qualifications of teachers of the first grade, as prescribed by the act, shall be to “teach orthography, reading in English, penmanship, arithmetic, English grammar, modern geography, the elements of the natural sciences, the history of the United States, physiology and the laws of health,” and of the second grade, shall be to teach “orthography, reading in English, penmanship, arithmetic, English grammar, modern geography and the history of the United States.”

The difficulty in the case lies in ascertaining what studies the board of education may prescribe for the schools of the district, under the phrase “such other branches.” As the branches teachers shall be qualified to teach are specifically mentioned, the argument insisted upon in support of the bill is, the branches enumerated are the kind of branches, and the language in which they are expressed in the statute is the kind of language, the legislature had in mind when it used the general terms, “and in such other branches.” We will be assisted to a clearer understanding of what the General Assembly may have intended to be understood by the use of the words, “such other branches,” in connection with the studies prescribed for the schools, by a brief review of the legislation concerning public schools. It may be well to observe,--first, the legislature, from its earliest action on the subject of schools, seems to have used the words “free schools,” and “common schools,” interchangeably, sometimes using one phrase and at other times using the other, as meaning the same thing; and, second, that the words, “English education,” found in the bill, do not exist in the present statute. In the revision of 1872, of the School law, the expression, “English education,” was omitted. Notwithstanding the omission of the words, “English education,” from the statute, it must be conceded the education to be afforded to the children of the State by the system of free schools the General Assembly is required to establish, is what is popularly understood to be an “English education.” But what is an ““English education?” The sciences are taught in the languages of all civilized peoples. Mathematics, geography, geology, and other sciences taught in the schools are no more a part of an English education than they are of a German education. An education acquired through the medium of the English language is an English education; but if the same branches were taught in the German language it would be a German education. It is, therefore, the language employed as a medium of instruction that gives distinctive character to the education, whether English, German or French, and not the particular branches of learning...