Shaw v. Small

• Decision Date: 23 July 1924
• Citation: 125 A. 496
• Parties: SHAW, Atty. Gen., ex rel. ARSENAULT v. SMALL et al.
• Court: Maine Supreme Court

125 A. 496

SHAW, Atty. Gen., ex rel. ARSENAULT

v. SMALL et al.

Supreme Judicial Court of Maine.

July 23, 1924.

Exceptions from Supreme Judicial Court, Cumberland County, at Law.

Mandamus by Ransford W. Shaw, Attorney General, on the relation of Joseph Amedee Arsenault, by next friend, against Alfred B. Small and others, school committee of town of Yarmouth. Demurrer to return to alternative writ sustained, and defendants bring exceptions. Exceptions overruled, and peremptory writ granted.

Argued before CORNISH, C. J., and PHILBROOK, DUNN, DEASY, STURGIS, and BARNES, JJ.

Frank H. Haskell, of Portland, for relator.

Bradley, Linnell & Jones and William B. Nulty, all of Portland, for respondents.

DEASY, J. Joseph Arsenault, the relator, a boy about 13 years old, was excluded from the public schools of Yarmouth by the respondents, school officials of said town. Upon petition therefor an alternative writ of mandamus was issued directing the respondents to reinstate the relator, or show cause for failure to do so. Their return undertaking to show cause was on demurrer held insufficient. The case comes to this court on exceptions.

Joseph Arsenault is a ward of the state. By due court proceedings he was committed to the custody of the state board of children's guardians. In performance of its duty the board placed the boy in the care of Susan Walsh Whalen, a legal resident of the town of Yarmouth and since February 3, 1922, he has made his home with her in that town. He was admitted to the primary school of the town, promoted to the grammar grade and continued as a pupil until January 18, 1924, when he was excluded from the schools. The relator subsequently, through Mrs. Whalen, his custodian, applied for reinstatement. This request was summarily refused.

R. S. c. 16, § 30, reads in part:

"Every child between said ages [five and twenty-one years] shall have the right to attend the public schools in the town in which his parent or guardian has a legal residence."

School officials may in their discretion admit others, but only under the section above quoted is the admission of pupils made obligatory.

The parents of the relator have no legal residence in Yarmouth and had none at time of the exclusion. He had and has no probate guardian. If the word "guardian" must, as is contended, be strictly construed to mean a guardian appointed as such by a court, the respondents would prevail. But the word is not to be thus interpreted.

The word "guardian" as used in statutes usually signifies probate guardian. The context ordinarily shows this and no other to be the meaning. Sometimes it is not so used, as for example in the statute creating the state board of children's guardians. The word is employed in different senses. At common law the father was denominated the infant's "guardian by nature" or as more commonly expressed "natural guardian." 12 R. C. L. 1105. Our statute in effect makes the mother joint natural guardian with the father. R. S. c. 64, § 44. To the natural guardians the law commits the child's care and custody, even if he has a guardian appointed by the probate court. The probate guardian as such (and other than in exceptional cases) has to do only with the ward's property. R. S. c. 72, § 3.

The Legislature doubtless intends that each child in the state shall have the legal right to attend some free public school. In some states the residence of the child is made the determining factor. Here it depends upon the residence of parent or guardian. The duty of this court is to determine the meaning of the word "guardian" when used in this connection and for this purpose.

Article 8 of the Maine Constitution reads:

"A general diffusion of the advantages of education being essential to the preservation of the rights and liberties of the people; to promote this important object, the Legislature are authorized, and it shall be their duty to require, the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools."

It is to give effect to this mandate of our fundamental law that elementary education is made universal and compulsory. As a necessary corollary the Legislature intended that free public school privileges should be somewhere open to all children living in any town in the state. The respondents contend that when the Legislature undertook to determine what public school each pupil could attend as a matter of right, it intentionally omitted orphan children without probate guardians. They argue that the law must be so construed as to exclude from free school privileges every abused and neglected child who has been by the state, the superguardian of all children, removed from the demoralizing influences surrounding him. This would be to deny the discipline and training of schools to those having the greatest need of it. It is no answer to say that children may be put in homes in the same town with the parents. In most cases this would be impracticable and would defeat the very purposes of the act.

But the defendants must prevail notwithstanding the incongruities involved if the word "guardian" must be held to mean a guardian appointed as such by a court. This, however, is not the necessary meaning. No authority that has been called to our attention so holds.

Every dictionary defines "guardian" either precisely or in substance thus: "A person who legally has the care of the person or property or both of another, incompetent to act for himself." This definition applies to Mrs. Whalen. The care of the relator was given her by authority of the state. As against his parents, as against all the world, except the state, she is entitled to his custody. By decree of court the rights of the natural guardians have been extinguished. To their rights of care, custody, and protection Mrs. Whalen has succeeded and for the time being possesses and exercises. She stands toward the relator in loco parentis.

The relator's name was included in the list certified by the town officials to the state superintendent of public schools.

The share of the state school fund received by Yarmouth was in part based on this list. The officials did right in including the relator's name in their enumeration. The statute requires the "leaving out" of certain persons of school age who are within the town. But children circumstanced as was the relator are not required to be left out. His name was properly included in the certified list. No estoppel was created as argued by counsel upon authority of cases construing other and differing state statutes. But does the Legislature intend to distribute the state school fund among towns in respect to...