State ex rel. Shineman v. Board of Ed.

• Decision Date: 06 April 1950
• Docket Number: No. 32786,32786
• Citation: 42 N.W.2d 168,152 Neb. 644
• Parties: STATE ex rel. SHINEMAN v. BOARD OF EDUCATION.
• Court: Nebraska Supreme Court

Page 168

42 N.W.2d 168

152 Neb. 644

STATE ex rel. SHINEMAN v. BOARD OF EDUCATION.

No. 32786.

Supreme Court of Nebraska.

April 6, 1950.

Syllabus by the Court.

1. A court has no power by mandamus to control the decision of those matters which are left by statute to the discretion of the governing body of a governmental agency.

2. A peremptory writ of mandamus should be issued only where the legal right to it is clearly shown.

3. A constitutional provision is not self-executing if the language of the Constitution is directed to the Legislature, or if it appears from the language used and the circumstances of its adoption that subsequent legislation was contemplated to carry it into effect.

4. Article VII, section 6, of the Constitution is not self-executing.

5. Section 79-443, R.S.Supp., 1949, places the general power in the school board with the consent and advice of the Superintendent of Public Instruction to establish such branches and grades as the board shall deem best adapted to the school.

6. The second sentence of section 79-802, R.S.Supp., 1949, relates to the subject of tuition. It does not relate to the subjects of grades, departments, or courses of study.

7. Section 79-444, R.S.Supp., 1949, deals with the subject of minimum-age requirements. It does not require the maintenance of a kindergarten or beginner grade in the schools.

8. The simultaneous repeal and reenactment of a statute in terms or in substance is a mere affirmance of the original act and not a repeal in the strict or constitutional sense.

Leon Samuelson, Franklin, Stiner & Boslaugh, Hastings, for appellant.

Spence & Long, Franklin, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

SIMMONS, Chief Justice.

In this action relators sought a writ of mandamus requiring the respondents to furnish and make available in the school operated by respondents a kindergarten or beginner grade for children who attained the age of five years but not six years on or before October 15, 1949. The trial court denied the writ. Relators appeal. We affirm the judgment of the trial court.

The relators are parents of children over five years of age and, at the time this action was begun, not yet six years of age. They are residents of the city of Franklin and of School District No. 33 in Franklin County.

The respondents are the Board of Education of School District No. 33.

The district is a class III district as defined in section 79-102, R.S.Supp., 1949. The district has never maintained in its schools a kindergarten or beginner grade as distinguished from a first grade. Before the budget was adopted in June 1949, the question of establishing a kindergarten was considered but not adopted because of financial reasons and lack of available room. In August 1949, the Board of Education considered and denied a petition for the establishment of a kindergarten. At the beginning of the school term on September 12, 1949, the relators presented their children for admission as members of a kindergarten or beginner grade and were denied admission because such a grade was not maintained. It was stipulated that had the district provided a kindergarten grade the children would have been required to attend. Relators did not request that the children be admitted to the first grade. Shortly thereafter this action was begun for the writ and with the result above stated.

Relators present the question here as to whether or not it is mandatory that a class III school district maintain and operate a kindergarten or beginner grade for the instruction of children more than five years old but not six years old.

The respondents state the question as follows: 'Will mandamus issue to compel a school district to establish, maintain, and operate either a kindergarten or a beginner grade preliminary to the first grade for the instruction of children who have attained the age of five years but have not reached the age of six years?'

We have held that a court has no power by mandamus to control the decision of those matters which are left by statute to the discretion of the governing body of a governmental agency, and that a peremptory writ of mandamus should be issued only where the legal right to it is clearly shown. State ex rel. Strange v. School District, 150 Neb. 109, 33 N.W.2d 358.

Relators contend that the mandatory duty exists and that the legal right to the writ of mandamus is clear.

Relators rely upon the provisions of Article VII, section 6, of the Constitution and upon sections 79-802 and 79-444, R.S.Supp., 1949.

The constitutional provision is: 'The legislature shall provide for the free instruction in the common schools of this state of all persons between the ages of five and twenty-one years.'

Section 79-802, R.S.Supp., 1949, is: 'All schools organized within the limits of such cities shall be under the direction and control of the boards of education authorized by section 79-803. Such schools shall be free to all children between the ages of five and twenty-one years whose parents or guardians are legal residents of such district, and all children of school age, nonresidents of the district, who are or may be by law allowed to attend the schools without charge.'

Section 79-444, R.S.Supp., 1949, is: '(1) The district board or the board of education, in all classes of school districts, shall not admit any child to the first grade of any school of such district unless such child has reached the age of six years or will reach such age on or before October 15 of the current year: Provided, that in the event any child has successfully completed the kindergarten or beginner grade such child may enter the first grade of any such school regardless of age.

'(2) The board in all classes of school districts shall not admit any child into the kindergarten or beginner grade of any school of such school district unless (a) such child has reached the age of five years or will reach such age on or before October 15 of the current year or (b) such child has demonstrated through recognized testing procedures approved by the Superintendent of Public Instruction that he is capable of carrying the work of those grades.'

The relators argue in this way--that under the constitutional provision and section 79-802, R.S.Supp., 1949, their children are entitled to free public instruction; that under the provisions of section 79-444, R.S.Supp., 1949, the children are prohibited from entering the first grade and securing the free public instruction there; and that accordingly the district is required to provide a kindergarten or beginner grade in order that the children may have the free instruction.

The constitutional provision is clearly directed to the Legislature. We held in State ex rel. Walker v. Board of Commissioners, 141 Neb. 172, 3 N.W.2d 196, that a constitutional provision is not self-executing if the language of the Constitution is directed to the Legislature, or if it appears from the language used and the circumstances of its adoption that subsequent legislation was contemplated to carry it into effect. With reference to this provision we said in Affholder v. State,...