Stone v. Probst

• Decision Date: 24 December 1925
• Docket Number: No. 24983.,24983.
• Citation: 206 N.W. 642,165 Minn. 361
• Parties: STONE v. PROBST et al.
• Court: Minnesota Supreme Court

206 N.W. 642

165 Minn. 361

STONE v. PROBST et al.

No. 24983.

Supreme Court of Minnesota.

December 24, 1925.

Appeal from District Court, Hennepin County; W. C. Leary, Judge.

Proceeding by J. L. Stone for a writ of mandamus to be directed to Ella M. Probst, and others. After an alternative writ was quashed and the action dismissed, plaintiff appeals from an order denying a motion for amended findings or a new trial. Affirmed.

Malmberg & Nelson, of Minneepolis, for appellant.

Neil M. Cronin, City Atty., and Thomas Kilbride, Asst. City Atty., both of Minneapolis, for respondents.

WILSON, C. J.

The board of education of the city of Minneapolis was created as a school corporation by chapter 157, Special Laws 1878, which, as amended, is now a part of the home rule charter of that city, adopted November, 1920, pursuant to section 36, art. 4, of the state Constitution. Chapter 18 of the Charter provides for a corporation known as the board of education of the city of Minneapolis, and, among other things, the charter says:

"It shall have the entire control and management of all the common schools within the city * * * and make rules and regulations for the government of the schools."

Pursuant to the authority above indicated, the board provided rules, and, among other things, in article 5, § 10, they provide that principals and teachers must be on the alert to discover suspected contagious diseases, filth, or vermin and physical and mental defects. Against conscientious objection, medical examination will not be made, but, where such examination is necessary for the protection of the health of other children, a child is excluded until it presents the same evidence required of other children who are excluded because of infectious disease.

Plaintiff is a resident citizen and taxpayer in said city, and is the father of Margaret Stone, a child 6 years of age attending such schools. On March 31, 1925, she was ill with a throat infection or sore throat, and was troubled with a hoarseness by reason thereof. Her exclusion followed. She was entitled to return upon the school authorities being furnished with a negative report from a throat culture submitted to the division of public health of the city. In addition thereto, she was also required to present a certificate from a physician as to the condition of her throat or submit to a physical examination by the regularly employed school physicians or nurses. Her refusal is based upon conscientious objections incident to being a Christian Scientist.

Plaintiff procured an alternative writ of mandamus requiring the respondent, who was the principal of the school which the pupil attended, to readmit her or show cause why she should not be received. The answer pleaded the rules and the condition of the pupil. The trial court quashed the writ and dismissed the action. Plaintiff's motion for amended findings or a new trial was denied.

Plaintiff has attempted to appeal from the order both in refusing to amend findings and in not granting a new trial. The former is not appealable. Nash v. Kirschoff (Minn.) 201 N. W. 617.

The validity of the legislative act creating the board of education which is now carried into the charter is established. State ex rel. Smith v. City of St. Paul, 128 Minn. 82, 150 N. W. 389.

Appellant contends that the making of the rules by the board is unauthorized and unconstitutional, in that it is a legislative enactment in contravention of section 1, art. 3, of the state Constitution. The Legislature out of necessity has provided for school districts and boards to govern them. It has permitted in Minneapolis a commingling of the schools with the municipality. It has also permitted the people of that territory, by the adoption of a home rule charter, to provide for the administration of the school affairs. To have the entire control and management with power to make rules and regulations means almost every power necessary or essential for the proper administration of such schools. It must be conceded by all that one of the primary duties of the board is to protect the health of the many children in their charge. Persons differ only in how this is to be accomplished. Efforts for prevention do much to avoid an epidemic. The demand upon the board for vigilance in this respect is imperative. All authority exercised in the protection of the public health is to be liberally construed. We hold that the language of the charter by fair implication confers upon the board of education the power to make and enforce the rules involved. In fact it could not effectually carry out the purposes for which it exists without such power. State ex rel. Freeman v. Zimmerman, 86 Minn. 353, 90 N. W. 783, 58 L. R. A. 78, 91 Am. St. Rep. 351; State ex rel. Smith v. City of St. Paul, 128 Minn. 82, 150 N. W. 389; Bright v. Beard, 132 Minn. 375, 157 N. W. 501, Ann. Cas. 1918A, 399; Streich v. Board of Education, 34 S. D. 169, 147 N. W. 779, L. R. A. 1915A, 632, Ann. Cas. 1917A, 760; Jones v. Day, 127 Miss. 136, 89 So. 906, 18 A. L. R. 645; Pugsley v Sellmeyer, 158 Ark. 247, 250 S. W. 538, 30 A. L. R. 1212; People ex rel. Hill v. Board of Education, 224 Mich. 388, 195 N. W. 95.

It is conceded by appellant that the city council would have authority to make the rule in question. This concession is upon the theory that the city council is a legislative body and may enact a measure that is a law. It is contended here that the school board by its rules has assumed to enact a law and that it is without legislative authority. Of course the legislative body cannot be permitted to relieve itself of this power by delegating it to another body. But the constitutional inhibition cannot be extended so as to prevent the grant of legislative authority to administrative boards to adopt rules to carry out a particular purpose. It cannot be claimed that every grant of power to administrative...