State ex rel. Prchal v. Dailey

• Decision Date: 03 January 1931
• Docket Number: 7100.
• Parties: STATE ex rel. PRCHAL v. DAILEY et al.
• Court: South Dakota Supreme Court

234 N.W. 45

57 S.D. 554

STATE ex rel. PRCHAL v. DAILEY et al.

No. 7100.

Supreme Court of South Dakota

January 3, 1931

Appeal from Circuit Court, Haakon County; John F. Hughes, Judge.

Action in prohibition by the State of South Dakota, upon the relation of Edward Prchal, as a resident citizen and taxpayer of the State, against Robert Dailey and others, as members of and constituting the Board of Regents of the State of South Dakota. From a judgment for defendants and from an order denying a new trial, plaintiff appeals.

Reversed and entry of judgment deferred.

E. M Starcher, of Fairfax, and Sutherland, Payne & Linstad, of Pierre, for appellant.

M. Q Sharpe, Atty. Gen., Benj. D. Mintener, Asst. Atty. Gen., F. D. Wicks, of Scotland, S. D., W. H. Farmer, of Madison, and Bailey & Voorhees, of Sioux Falls, for respondents.

BURCH J.

In 1881 the Dakota Territorial Legislature passed chapter 99, Session Laws of 1881. That part of said chapter material to the issues in this case provides:

"That a Normal School for the Territory of Dakota be established at Madison, in Lake county, D. T., the exclusive purpose of which shall be the instruction of persons both male and female in the art of teaching and in all the various branches that pertain to a good common school education; also to give instruction in the mechanical arts and in husbandry and in agricultural chemistry, in the fundamental laws of the United States and in what regards the rights and duties of citizens." Section 1.

By a similar provision chapter 100 of the Same Session (section 1) provided for a normal school at Spearfish, Lawrence county, and chapter 101 (section 1) provided for a normal school at Springfield, Bon Homme county. The purpose declared in the original act has been carried forward in all subsequent legislation without material change and now appears as section 5611, Rev. Code 1919. During territorial days the schools were under the direction of a board of education. At the beginning of statehood the control of the schools was conferred upon the Regents of Education by the Constitution. The Constitution, article 14, § 3, as amended in 1896, provides:

"The state university, the agricultural college, the normal schools and all other educational institutions that may be sustained either wholly or in part by the state shall be under the control of a board of five members appointed by the governor and confirmed by the senate under such rules and restrictions as the legislature shall provide. The legislature may increase the number of members to nine."

The regents in the exercise of their control over these normal schools have provided a course of study for the training of teachers to qualify them to teach in the grade schools below the high school, and this course may be fairly said to be within the declared purpose for which the schools were created. We do not understand that there is any serious issue as to the authority of the board to prescribe the curricula of the schools so long as they are confined to training teachers for teaching in the public schools of the state below the rank of high schools. But the regents have prescribed additional curricula for these schools leading to advanced degrees, have changed the names of the schools designating them as colleges, and have established them as teachers' colleges authorized to teach a college course and to train teachers qualified to teach in the high schools and other higher institutions of learning. We think the issues are sufficiently apparent when we say that none of these schools are confined exclusively to the training of teachers for the common schools below the grades of high schools.

Relator claiming that the regents have exceeded their authority in making of these normal schools, teachers' colleges, brings this action in prohibition to prevent a continuance of such unauthorized acts. The learned trial judge denied the writ, and relator appeals.

Without regard to technical accuracy, we will for convenience in this opinion refer to public schools below and including the eighth grade, as grade schools, and those above as high schools. When speaking of courses of study, taught in higher institutions of learning we will speak of them as college courses.

Before discussing the issues involved in this case, a few general observations may be of use in understanding and applying the principles necessary to a correct solution of the case. Education has always held a high place in the minds of the people of this country. Our state Constitution (article 8, § 1) provides:

"The stability of a republican form of government depending on the morality and intelligence of the people, it shall be the duty of the legislature to establish and maintain a general and uniform system of public schools wherein tuition shall be without charge, and equally open to all; and to adopt all suitable means to secure to the people the advantages and opportunities of education."

In State ex rel. Eveland v. Erickson, 44 S.D. 63, 182 N.W. 315, 13 A. L. R. 1189, Judge Whiting speaking for this court (page 68 of 44 S. D., 182 N.W. 315, 316) said, "During the whole history of our nation, religion and education have been recognized as the foundation pillars of American civilization." Naturally education holding so important a position has been the subject of a great deal of legislation, and many changes have been made in the laws from time to time to meet new conditions. What would have been considered a good average education in 1881 would not be so considered today. Standards of education have advanced, and methods of teaching have changed. But we think it is elementary that the people through their Legislature and the Constitution have a right to control and prescribe the limits to which they will go in supplying education to the children and youth of the state at public expense. Neither educators nor administrative boards can expend public funds for education, unless the education for which it is expended is authorized by law. If that is true, we must look to the Constitution and the statutes of this state for the authority of the regents to maintain the normal schools involved in this action as teachers colleges. The affection of the people for education and the history of its advance are important in construing the statute, but not important as a reason for upholding the acts of the regents if such acts are not authorized by the statutes when properly construed. Any need for advanced courses in these schools may be urged upon the Legislature as a reason for more legislation, but not upon this court to sustain the action of the regents. The question before us is: Are they authorized?

Since the regents have greatly advanced the courses of study that may now be pursued in these schools, over the courses prescribed in their earlier history, and since these courses are not obviously within the purpose for which the schools were declared to have been established in the enactments creating them, we turn first to the arguments of respondents by which they seek to sustain their conduct.

Respondents' first contention is that under the Constitution this action cannot be maintained. They argue that the "control" of the institutions necessarily includes the power to prescribe their curricula. Conceding for the sake of argument that this is true, it does not necessarily follow that curricula foreign to the purposes for which the schools were established can be prescribed. The curriculum of a school very largely determines its character. No one would contend that the regents may create and establish state schools and colleges at will. Suppose the regents were to prescribe that the curricula of all the schools and colleges of the University be followed and taught in the State College of Agriculture and the curriculum of the State College be followed and taught at the University, might they not be justly charged with having moved the University to Brookings and the State College to Vermillion? No one would contend that could be done under the guise of prescribing the curricula of the schools. The curriculum must conform to the character and purpose of the school.

But it may be suggested that where the course of study is appropriate to fulfill and conform to the purpose it is not subject to objection because it goes further and supplies an opportunity for more education than is required by the state to teach a grade school, so long as those desiring to qualify for a grade school only are not required to take the additional courses. But the answer is that the additional courses may amount to the creation of another and higher school. We think it must be conceded that these normal schools, although they may properly be classed as normal schools within the restricted meaning contended for by relator, are also now teachers' colleges. Unless they were created colleges or created capable of becoming colleges by the statutes of 1881, they have been so created by the regents. There is no direct specific subsequent legislation to effect that change, and since the regents have no power to establish schools or colleges, their action cannot be sustained unless authority therefor can be found in the Constitution, the act creating the schools, or in general legislation prescribing the duties and powers of the regents.

The Constitution places these schools in "control" of the regents "under such rules and restrictions as the legislature shall provide." Respondents cite State v. State Board of Education, 33 Idaho, 415, 196 P. 201 205, and Board of Regents v. Auditor General, 167 Mich. 444, 132 N.W. 1037, to support their view that the regents under the Constitution are supreme in all matters pertaining to the management of the schools. ...