State ex rel. Comstock v. Joint Sch.-Dist. No. 1 of Arcadia

• Decision Date: 06 April 1886
• Citation: 65 Wis. 631,27 N.W. 829
• Parties: STATE EX REL. COMSTOCK v. JOINT SCHOOL-DIST. NO. 1 OF ARCADIA AND GLENCOE.
• Court: Wisconsin Supreme Court

65 Wis. 631

27 N.W. 829

STATE EX REL. COMSTOCK

v.JOINT SCHOOL-DIST. NO. 1 OF ARCADIA AND GLENCOE.

Supreme Court of Wisconsin.

Filed April 6, 1886.

Appeal from circuit court, Trempealeau county.

The relator presented his affidavit to the circuit court, in which he deposes that he resides within one mile of the school-house of the respondent district, but not in such district, and is a tax-payer therein; that there is no public school in session in the school-district in which he resides, but there is one being held in the respondent district, and that the qualified electors of the latter district duly authorized the district board thereof to admit non-resident pupils to the privileges of the school therein on payment of a term fee of from three to six dollars. The names of the district officers are stated. The affidavit then proceeds as follows: “That affiant's son, Adam Comstock, is a youth fourteen years of age; that he resides with his parents, and is a studious, quiet, and well-behaved child; that said Adam is well advanced for his years in all branches ordinarily taught in the public schools; that the educational advantages afforded in respondent district are superior and more suited to the requirements of said Adam than those afforded within the district where affiant resides; that said Adam is anxious to avail himself of the benefits of said school, and the superior facilities for education therein afforded; that affiant, desiring that his said son should have the benefits of said school, and also to comply with the laws of this state relating to the education of children, did, on the eighth day of July, 1885, request in writing the said district board to admit his said son to the privileges of said school, but that said board refused said request unless affiant would first pay the sum of six dollars as and for one term's tuition fees for said Adam, which affiant declined to do; that on the twenty-first day of September, 1885, said Adam duly presented himself at said school for admission as a scholar thereof, but was rejected and refused such admission because of the non-payment of said tuition fee; that the facilities of said school are in excess of the requirements of the scholars residing within said district; that non-resident scholars have heretofore been admitted to said school, and the admission of affiant's said son will in no degree interfere with the accommodation or instruction of the scholars residing within said district, and that he is refused such admission solely for the non-payment of said tuition fee; that said district board have no right to charge said tuition fee; that affiant's said son is entitled to attend said school without the payment thereof; and that the demand thereof is unjust and an unlawful exaction, and in violation of section three, article ten, of the constitution of the state. Wherefore, affiant asks that a writ of peremptory mandamus be issued out of and under the seal of this court, directed to said joint school-district No. one, of Arcadia, Trempealeau county, No. four, of Glencoe, Buffalo county, Wisconsin, or the proper officers thereof, commanding that said Adam Comstock be admitted to the privileges of the public school of said district, without the payment of tuition fee; and for such other or further order or relief in the premises as may be just.”

Upon the foregoing affidavit an order upon the respondent district and its officers was granted, requiring them to show cause why the relief asked for in the affidavit should not be granted. The district moved the court to quash the application for a mandamus, and to dismiss all proceedings therein, for the alleged reasons that the affidavit shows no proper cause for issuing a writ of mandamus, or that the relator is entitled to any relief; and it does not state facts sufficient to constitute a cause of action. After hearing such motion the court ordered that the application for a mandamus be denied, and that such application be quashed and dismissed. The relator appeals from the order.E. Q. Nye, for appellant, Noah D. Comstock.

Cameron & Losey, for respondents, Joint School-dist. No. 1 of Arcadia and Glencoe.

LYON, J.

Section 3, art. 10, of the constitution, reads as follows: “The legislature shall provide by law for the establishment of district schools, which shall be as nearly uniform as practicable; and such schools shall be free, and without charges for tuition to all children between the ages of four and twenty years; and no sectarian instruction shall be allowed therein.” Counsel for appellant maintains (using his own language) “that a reasonable interpretation of the constitutional provision in question places no restriction as to the residence of the scholar, except that he or she reside within this state, and...