State ex rel. Priest v. Regents of the Univ. of Wis.

• Decision Date: 10 January 1882
• Citation: 11 N.W. 472,54 Wis. 159
• Parties: STATE EX REL. PRIEST v. REGENTS OF THE UNIVERSITY OF WISCONSIN.
• Court: Wisconsin Supreme Court

54 Wis. 159

11 N.W. 472

STATE EX REL. PRIEST

v.REGENTS OF THE UNIVERSITY OF WISCONSIN.

Supreme Court of Wisconsin.

Filed January 10, 1882.

Mandamus.

This is a demurrer to the return of the president of the board of regents of the university, made as and for and in behalf of said board to the alternative writ of mandamus issued on the petition of Edward B. Priest. It appears, in effect, from the petition and the writ, that the relator, being a member of the senior class of the university, in regular standing, was present with his class from September 7, 1881, to September 19, 1881, when he was excluded by the faculty, or a portion of them, acting under and in pursuance of a ressolution adopted in June, 1881, by the board of regents; that he had fully performed all the conditions requisite to entitle him to admission, and all that were required of him, except the payment of four dollars, charged to him (and all other students except members of the law class) for incidental expenses, and which was exacted as a condition of admission, but which he refused to pay, for the reason that such charge was “to compel resident students of the state to pay tuition under the name and in the guise of incidental expenses,” and hence was forbidden by law, and that the board had no right or power to exact the same.

The return, in effect, admits that the exclusion was upon the sole ground of non-payment of the four dollars charged for incidental expenses, as stated, but denies that the same was in any sense tuition, and insists that the purpose of such charge was to require both resident and non-resident students to contribute, in part, towards the payment of fuel and material to warm and light the public rooms of the university, including rooms for public exercises, literary societies, gymnasium, and the like, for the services of janitors to care for such rooms, and students' rooms, and to render occasional personal services to students, and for various other expenditures naturally incident to the conduct of the university, but no part of which goes for expenditures in the payment of professors, tutors, or the instructional force, or towards the maintenance of the means by which instruction or tuition is given to students; that the total of all the charges imposed by the board in June, 1881, for incidental expenses, on the basis of the attendance of students for the present year or any past year, is not equal to one-half of the amount which the regents will actually expend for fuel and lights for the public rooms of the university, and for incidental expenses of the nature stated; that the whole amount which can be collected from students for incidental expenses for the year 1881-2 cannot exceed the sum of $3,500, whereas, the amount necessarily expended for fuel alone to heat the several recitation rooms, halls, and other rooms used by and for the students in the manner above mentioned will exceed $4,500, a sum much greater than can be received for incidental expenses under the charges complained of. These facts, and many others,--some of which will be referred to in the opinion,--are all admitted by the demurrer.

S. U. Pinney and Olin & Grinde, for relator.

W. F. Vilas, for respondents.

CASSODAY, J.

The educational system of this state had its origin in certain grants of land from the national government, and was secured to the people by our state constitution. Article 10. It consists of common or district schools, academies and normal schools, and a state university, with such colleges to be connected therewith from time to time as the interests of education may require. Section 3 of that article requires that such district “schools shall be free and without charge for tuition to all children betwen the ages of four and twenty years.” No restriction as to fees or charges to be paid by students in academies, normal schools, the university, or any of the colleges to be connected therewith having been imposed by the constitution upon the law-making branch of the government, the state was left perfectly free, and is at liberty to regulate, control, or prohibit altogether such fees and charges by legislative enactment. This will not be denied, for it is a familiar and well-established principle of constitutional law that “the state legislature may exercise all legislative power not delegated to the general government, nor restricted nor reserved to the people by the state or national constitution.” W. C. R. Co. v. Taylor County, 52 Wis. 37, [S. C. 8 N. W. REP. 833,] and cases there cited.

Besides, the fact that there is a constitutional restriction in regard to fees and charges for tuition in district schools, but none as to the university or any college connected therewith, pretty clearly evinces an intent to leave the legislature unrestricted, in that regard, as to the university and its colleges. The precise question raised by the demurrer, therefore, is whether the four dollars charged for incidental expenses is authorized by the statute. Section 388, Rev. St., provides that “no student who shall have been a resident of the state for one year next preceding his admission, shall be required to pay any fees for tuition in the university, except in the law department and for extra studies. The regents may prescribe rates of tuition for any pupil in the law department, or who shall not have been a resident as aforesaid, and for teaching extra studies.” There is no pretence that the charges in question were for extra studies, nor that the relator was in the law department, or not a resident of the state for more than a year next preceding his application for admission. The simple question is, therefore, in the language of the petition, whether the charge exacted was “under the name and in the guise of incidental expenses,” but in “fact to pay for tuition.” If it was, then the prohibition cannot be doubted. If it was not, then it remains to be seen whether there was authority to make the charge under the statute. Can we hold that “incidental expenses,” as defined, are covered by and included in the word “tuition,” and hence within the prohibition of the statute?

In determining this question the meaning of the word “tuition” has an important bearing. Not necessarily so much the significance given to it as used and applied to district schools in the constitution, nor as defined at different periods by philologists, but as expressive of the legislative intent in the section of the statute quoted. As an aid in discovering such intent we may consider the sense in which the word “tuition” had been used by the officers and faculty of the university prior to such legistive enactment; for the legislature must be deemed to have had in view such use when they passed the inhibition in question. It appears that for each year during a period of 18 years, from 1848 to 1866, the statutes restricted the charge for tuition to a certain amount named, which was varied from time to time by the board of regents. During that period every student was required to pay a certain amount as tuition With certain exceptions and qualifications, the same was true for the ten succeeding years and down to 1876. In each year for the same period of 28 years the officers and faculty were accustomed to exact, in addition to such tuition, certain charges under the different names of admission fee, matriculation fee, incidental fee, and charges for fuel, light, etc., for the public rooms and halls of the university. The amount of these charges in the several years, and the name under which the same were exacted, varied from time to time. In the catalogue published in October, 1875, the charges exacted were for tuition, heating and lighting the university hall and public rooms, music, each diploma, and a matriculation fee in the law department. With knowledge of this schedule of charges, as we must assume, the legislature provided that after July 4, 1876, “no student or candidate for admission to the university of Wisconsin, who shall have been a resident of the state of Wisconsin for one year last preceding his application for admission to said university, shall be required to pay any fee for tuition therein; but this provision shall not apply to students taking extra studies, (so called,) nor to students in the law departments.” Section 5, c. 117, Laws 1876. The substance of this section was re-enacted in the Revised Statutes, being section 388 above quoted.

It will be noticed that this prohibition is confined to fees for tuition, but is silent as to the other charges named in the catalogue then regulating the same. Can this silence as to a portion of the charges named in the catalogue, and the express inhibition as to another, be construed as an intent to prohibit the exaction of the charges not mentioned as well as the one expressly named? Can it be fairly held that such silence was by inadvertence or mistake, and not intentional? If so, would the legislature be likely to make the correction, or remain silent after their attention had been called to the subject? But all the charges (except tuition to resident students) were continued right along, not only after the act of 1876, but until after the present revision of the statutes. Thus we find that, notwithstanding two catalogues were published, containing similar charges to those complained of, after the act of 1876, and prior to the Revision, yet the Revision contained no prohibition against such charges, but only against tuition. A maxim of the law, often quoted, seems, therefore, to be peculiarly applicable: “ Expressio unius est exclusio alterius. ” The long-continued use of the word “tuition” by the officers and faculty of the university, and other similar institutions, as stated in the return, and the legislation had in respect to it, leaves no doubt in the mind of the court that the words of the statute, “no student [except as...