State ex rel Johnson v. Cotton, 8285

• Decision Date: 12 December 1939
• Docket Number: 8285
• Citation: 289 N.W. 71,67 S.D. 63
• Parties: STATE ex rel J.O. JOHNSON, Superintendent of the Bethesda Children’s Home, Respondent, v. D.L. COTTON, and the Directors of Beresford Independent School District No. 87, et al., Appellants.
• Court: South Dakota Supreme Court

67 S.D. 63

289 N.W. 71

STATE ex rel J.O. JOHNSON, Superintendent of the Bethesda Children’s Home, Respondent,

v.

D.L. COTTON, and the Directors of Beresford Independent School District No. 87, et al., Appellants. South Dakota Supreme Court Appeal from Circuit Court, Lincoln County, SD Hon. Lucius J. Wall, Judge #8285—Affirmed Frieberg & Frieberg, Beresford, SD Attorneys for Defendants and Appellants. Harold M. Eastvold, Canton, SD Attorneys for Plaintiff and Respondent. Opinion Filed Dec 12, 1939

POLLEY, Judge.

The defendants Cotton, Dolan, Nissen and Wilson are the directors of the Beresford Independent School District No. 87. Defendant Hogen is superintendent of the Beresford Public Schools situated in said district, and defendant Skarda is principal of the grade schools in said district.

The relator, J.O. Johnson, is the superintendent in charge of the Bethesda Children’s Home situated in said school district.

The Bethesda Children’s Home is a charitable institution owned by the Norwegian Lutheran Church of America, a Minnesota corporation, and is maintained for the purpose of providing a home for and caring for homeless children. It also is situated within the Beresford Independent School District No. 87.

The children in this home, of which there were 32 in number at the time of the commencement of this proceeding, are all of school age. Prior to 1935 said Children’s Home furnished school facilities complying with the requirements of the school law of this state for the children living therein. For the years 1935, 1936 and 1937 such children were sent to the public schools of the said school district where they were received by the school district authorities and accorded the same privileges as other children residing in the said school district.

At the beginning of the school year of 1938 said children were taken to the said Beresford school by the relator who requested that they be received into said school and be accorded the same privileges that had been accorded to them during the previous three years. This request was refused by the officers of the said school district, unless tuition were paid therefor. Relator, claiming that the children living at the said Children’s Home had the same right to attend the public schools in said district, tuition-free, as other children living in the district, instituted this proceeding for the purpose of compelling the said school district authorities, by writ of mandamus, to admit the children from the said Home to the public schools of the said district without payment of tuition.

Findings of fact and conclusions of law were for relator and the court issued a permanent writ of mandamus requiring defendant to receive said children into the public schools of the district, tuition-free, and from said writ and the order denying defendants’ motion for a new trial, defendants appeal to this court.

By the...