State ex rel. Halbert v. Clymer

• Decision Date: 03 June 1912
• Parties: STATE OF MISSOURI ex rel., PRESTON HALBERT, Respondent, v. HARRY CLYMER et al., Appellants
• Court: Missouri Court of Appeals

147 S.W. 1119

164 Mo.App. 671

STATE OF MISSOURI ex rel., PRESTON HALBERT, Respondent, v. HARRY CLYMER et al., Appellants

Court of Appeals of Missouri, Springfield

June 3, 1912

Appeal from Crawford Circuit Court.--Hon. L. B. Woodside, Judge.

AFFIRMED.

Judgment affirmed.

Harrison & Norvell and Harry Clymer for appellant.

(1) Under the statute only bona fide residents of a school district are entitled to attend school without paying tuition, unless they come within the exceptions therein contained. R. S. 1909, sec. 10785; Lexington ex rel. v Bank, 130 Mo.App. 692; Binde v. Klinge, 30 Mo.App. 285. (2) In order to constitute a minor resident for school purposes the parent or guardian must be a resident of the school district. State ex rel. v. Smith, 64 Mo.App. 213; School District v. Matherly, 84 Mo.App 140. (3) The residence of the parents being in Greene county the legal residence of the minor is in Greene county and not in Crawford county. Lacy v. Williams, 27 Mo. 280; Lewis v. Costello, 17 Mo.App. 593; De Jarnett v. Harper, 45 Mo.App. 415. (5) Primarily the duty to support, maintain and educate the children rests upon the father. 29 Cyc. 1606; Chester v. Chester, 17 Mo.App. 657; Rankin v. Rankin, 83 Mo.App. 335.

Farris & Watson for respondent.

(1) The common school system of this state is a creature of the state Constitution and the laws passed pursuant to its command. The right of children to attend the public schools and of parents to send their children to them is not a privilege or immunity belonging to a citizen of the United States as such. It is a right created by the state and a right belonging to citizens of this state as such. Lehew v. Brummell, 103 Mo. 550. (2) A citizen is one who as a member of a nation or body politic of a sovereign state owes allegiance to and may claim reciprocal protection from its government. 7 Cyc. 133; State v. County Court, 90 Mo. 598. (3) A family is a collective body of persons who live in one house under one head or manager. Grocery Co. v. Monroe, 142 Mo. 170; 19 Cyc. 452. (4) When one stands in loco parentis to another he becomes responsible for the maintenance and education of the latter, on the principle that the child is held out to the world as part of his family. Schoulers Domestic Relations (5 Ed.), 370. (5) The father may surrender the care, custody and control of his child to another, subject to his own right of revocation. In the matter of Scarrit, 76 Mo. 582; Weir v. Marley, 99 Mo. 495. (6) This section 10785, has never been passed upon in its present form and we will look to the construction given it before the clauses in dispute were engrafted upon it. A careful examination of the construction then given to this section and the proper application of the rules there advanced, conclusively give the grandson in this case school privileges in the Steelville District. Binde v. Klinge, 30 Mo.App. 285.

OPINION

GRAY, J.

This action was instituted on the 19th day of February, 1912, by the respondent filing his petition in the circuit court of Crawford county, asking that an alternative writ of mandamus issue to the appellants, who constituted the board of directors of the Steelville school district, commanding them to permit Preston Gibson to attend the public schools in said district. The writ was issued and appellants entered their appearance and filed return thereto. The return admitted appellants had refused to permit the boy to attend the school and justified their action on the ground that he was a non-resident pupil, and refused to pay the tuition fee fixed by the board. The trial court found the issues against the appellants, and awarded a peremptory writ of mandamus, and defendants appealed.

The facts are practically undisputed. Preston Gibson at the time this suit originated, was seventeen years of age, and the relator, his grandfather, a taxpaying citizen of the Steelville school district, and had been for many years. The boy's parents resided at Springfield, this state, and his name appeared in the enumeration list as a school pupil, in that city, for the year 1911. The boy had attended school in Springfield for several years, but during vacations had lived much of the time with his grandfather at Steelville. The relator's wife was dead, but he had an unmarried daughter who kept house for him, and lived with him as a member of his family.

Some time in the summer of 1911, the grandfather asked the boy's father to let him have the boy, promising to send him to school, and to clothe and board him. The testimony preserved in the record on this point is as follows: "Q. State what Mr. Gibson did? A. He asked me, he said, 'Grandpa, do you want Preston, do you really want him,' and I said that I did and he says, 'Well, I will give him to you, you can take him and he can stay with you,' and I says, 'I will take him and treat him as one of the family,' and I says, 'I like Pres, he minds me and he is a good boy to me,' and he says, 'You can have him.' Q. That arrangement that you have testified to is that he is to remain with you as long as you live? A. As long as I live or want him. Q. Or as long as the boy wanted to? A. Yes, sir. Q. No definite time fixed, is there? A. No, sir. I expect him to stay; I don't expect to live very long, I am getting old, I expect him to stay with me until my death. Q. The understanding was that the boy might remain with you as long as he wanted to, is that true? A. No, sir, if he wanted to go away now I wouldn't let him."

Under the above arrangement the boy went to live with his grandfather, who, according to all the evidence, ever since said time, had controlled the child, purchased his clothing, and furnished him with the necessaries of life, and neither his father or mother had contributed anything to his support.

There was some conflict in the testimony as to whether the grandfather had agreed with the school authorities to pay a tuition, but if the child was entitled to attend the school without payment thereof, this question is immaterial.

The rights of the parties must be measured and determined by the provisions of our statutes read and construed with reference to the policy of the state in school matters. The statutory law of the case is found in section 10785, Revised Statutes 1909. This section provides that the board may admit pupils not residents within the district, and prescribe the tuition fee to be paid by the same. This part of the statute is followed by the proviso: "That the following children, if they be unable to pay tuition, shall have the privilege of attending school in any district in this state in which they may have a permanent or temporary home: First, orphan children; second, children bound as apprentices; third, children with only one parent living, and fourth, children whose parents do not contribute to their support."

As Preston Gibson is not an orphan or bound as an apprentice and both of his parents are living, his right to attend the school without the payment of the tuition, must be authorized by the fourth subdivision, if at all.

The policy of this state is to educate, and to furnish free of charge, good schools for all children of school age, and even to compel the attendance of children thereto. Section 1 of article 11, of the state Constitution, reads: "A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the General Assembly shall establish and maintain free public schools for the gratuitous instruction of all persons in this state between the ages of six and twenty years." It is therefore the duty of the courts to liberally construe our statutes relating to schools, and in such a manner as to open, and not to close, the doors of the schools against the children of the state. As said by the Supreme Court of Wisconsin in State v. Thayer, 41 N.W. 1014: "Such children are the wards of the state, to the extent of providing for their education to that degree that they can care for themselves and act the part of intelligent citizens. To secure these ends, laws relating to public schools must be interpreted to accord with this dominant, controlling spirit and purpose in their enactment, rather than in the narrower spirit of their possible relations to questions of pauperism and administration of estates."

While the statute must be liberally construed, we also recognize the fact that it would not be right to permit children living in districts whose taxpayers have neglected or refused to maintain schools to have the benefits free of charge of schools in districts wherein the taxpayers have burdened themselves to erect school houses, employ competent teachers and maintain schools. [Binde v. Klinge, 30 Mo.App. 285.]

Prior to 1885 the statute contained none of its present provisos, but simply authorized the board to admit non-resident pupils within the district, and to prescribe the tuition fee to be paid. In 1885 it was amended by adding the proviso: "That orphan children, or any children bound as apprentices, shall have the privilege of attending school in any district in the ...