Wright v. Board of Education of St. Louis

• Decision Date: 06 December 1922
• Citation: 246 S.W. 43,295 Mo. 466
• Parties: W. R. WRIGHT et al., Appellants, v. BOARD OF EDUCATION OF ST. LOUIS
• Court: Missouri Supreme Court

246 S.W. 43

295 Mo. 466

W. R. WRIGHT et al., Appellants, v. BOARD OF EDUCATION OF ST. LOUIS

Supreme Court of Missouri

December 6, 1922

Appeal from St. Louis City Circuit Court. -- Hon. William H Killoren, Judge.

Reversed.

Albert Chandler and William T. Rutherford for appellants.

(1) By the common law control of children is parental. This has been trenched upon by statute, reducing parental authority by compulsory education and vaccination, by juvenile courts, by giving the mother equal rights with the father. The State can go still farther through the Legislature. At common law the father could "delegate part of his parental authority to the tutor or schoolmaster of his child," said Blackstone. And now by statute the school board has been given certain powers. So wherever the will of the parent and schoolmaster conflict the teacher must point to a statute. Blackstone, Com. 452, 453; Dritt v. Snodgrass, 66 Mo. 286; State ex rel. Clark v. Osborne, 32 Mo.App 536; Armstrong v. School District, 28 Mo.App. 180; Morrow v. Wood, 35 Wis. 59. And compare Hobbs v Germany, 94 Miss. 469, with Waugh v. Trustee, 237 U.S. 589. And compare Ferriter v. Tyler, 48 Vt. 444, with Deskins v. Gose, 85 Mo. 485. (2) Our statutory history shows that the power of the St. Louis School Board has been from time to time, and steadily, reduced. Act Jan. 30, 1817, 1 Territorial Laws, p. 521; Act Feb. 13, 1833, 2 Territorial Laws, p. 399; Secs. 11135, 11457, R. S. 1919. (3) Legislatures are not presumed to enact laws as surplusage. So every such grant, in the fourteen states mentioned in the agreed statement of facts as having adopted anti-fraternity laws, argues at least the legislative belief that the power was wanting or doubtful under the general charter, and the express grant was to supply this want. The Missouri Legislature refused the defendant's request to pass such an act. An anti-fraternity rule must be predicated on charter power. State ex rel. v. Stallard v. White, 82 Ind. 278; Waugh v. Trustees, 237 U.S. 589; Wayland v. Hughes, 43 Wash. 441; Wilson v. Board of Education, 233 Ill. 471; Bradford v. Board of Education, 18 Cal.App. 19; State v. North, 27 Mo. 480. (4) The Missouri Legislature has refused to make these fraternities unlawful. "The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is and always has been one of the attributes of citizenship under a free government. It 'derives its source,' to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat 211, 'from those laws whose authority is acknowledged by civilized man throughout the world.' It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The Government of the United States, when established, found it in existence, with the obligation on the part of the States to afford it protection." United States v. Cruikshank, 92 U.S. 442, 23 L.Ed. 591; Mo. Constitution, art. 2, sec. 29; Mo. Constitution, art. 11, sec. 1.

Robert Burkham for respondent.

(1) The Board of Education of St. Louis has power to make rules and regulations. Sec. 1, Art. XI, Mo. Constitution; Sec. 11457, R. S. 1919. (2) In the first instance the board of education is the judge of the reasonableness and the needfulness of its rules. State ex rel. v. Cole, 220 Mo. 697; In re Rabenack, 62 Mo.App. 8; Duffield v. School District, 162 Pa. St. 483. (3) The rule barring pupils who are fraternity members from engaging in extra-curriculum activities does not violate any legal right of appellants' child, for he has no legal right to engage in such activities. (4) School authorities have the right to adopt rules relating to the conduct of pupils after school hours if such conduct has a direct and immediate effect upon discipline within the school. 35 Cyc. 1136; King v. School Board, 71 Mo. 628; Deskins v. Gose, 85 Mo. 485; Burdick v. Babcock, 31 Iowa 562; Lauder v. Seaver, 32 Vt. 114; Sherman v. Inhabitants of Charlestown, 8 Cush. (Mass.) 160; State ex rel. Dresser v. School Dist., 135 Wis. 619, 16 L. R. A. (N. S.) 730; Kinzer v. School Dist., 129 Iowa 441, 2 L. R. A. (N. S.) 985. (5) The board of education may lawfully forbid fraternity members engaging in extra-curriculum activities. Wayland v. Board of Education of Seattle, 43 Wash. 441, 7 L. R. A. (N. S.) 352; Wilson v. Board of Education of Chicago, 233 Ill. 464, 15 L. R. A. (N. S.) 1136.

WALKER, J. Woodson, C. J., and Graves and Higbee, JJ., concur; James T. Blair, J., concurs in result; David E. Blair, J., dissents in separate opinion, in which Elder, J., concurs.

OPINION

In Banc.

WALKER J.

This is an action brought by certain tax-paying citizens of the city of St. Louis, who are residents of a district tributary to and who have children attending one of its high schools, who pursue regular studies therein for the purpose of completing the course and graduating therefrom. The purpose of the action is to enjoin the Board of Education of said city from enforcing a rule adopted by it declaring that pupils who become and remain members of a high-school fraternity are rendered ineligible to membership in any organization authorized and fostered by the school and are not entitled to represent it in any manner or participate in any of its graduating exercises. Upon a hearing before the Circuit Court of the City of St. Louis, plaintiffs' petition was dismissed and the board, as a consequence, was held authorized to adopt and enforce the rule in question. From this judgment, the plaintiffs have appealed.

The Board of Education is an elective body, the number and terms of its members being prescribed by the statute of its creation. [Art. 16, chap. 102, R. S. 1919.] The board is authorized to appoint a Superintendent of Instruction. This official is clothed with power, among other things, to "have general supervision, subject to the control of the board, of the course of instruction, discipline and conduct of the schools" etc. [Sec. 11461, R. S. 1919.]

The Superintendent, in January, 1920, made the following recommendation to the board:

"Secret organizations in the high schools are undemocratic and undesirable and injurious to the free and wholesome life of these schools. They exert a pernicious influence upon their own members and upon pupils who do not belong to them, and upon the voluntary organizations of pupils, that are approved and fostered by the schools, and they are subversive of the fundamental principles upon which the public schools rest.

"It is therefore recommended that the Board of Education declare itself as opposed to their existence in the schools and forbid the pupils of the high schools to form or join such organizations or to continue to be members of them if they have already joined."

This was adopted as defining the regulatory action to be exercised by the board; and in December, 1920, a supplementary recommendation of the superintendent prescribing a penalty for a violation of the foregoing was adopted by the board as follows: "It is, therefore, recommended that high school pupils who refuse to conform to this regulation be declared ineligible to membership in organizations authorized and fostered by the school; that they be not permitted to represent the school in any capacity whatsoever; and that they be not allowed to participate in graduation exercises."

That portion of the statute (Sec. 11457, R. S. 1919) defining the power of the board and under which it assumes to act in this case, is as follows:

"Every such board of education . . . shall have power to . . . make, amend and repeal rules and by-laws . . . for the government, regulation and management of the public schools and school property in such city, . . . which rules and by-laws shall be binding on such board of education and all parties dealing with it until formally repealed. . . ."

I. The determination of the limit within which the power thus conferred may be exercised is the matter at issue. The influence public education exercises in the maintenance of good order and the consequent perpetuity of free government, is acknowledged by every impartial mind. The higher the intelligence of the people, the better the citizenship. Recognizing this truth, one of the greatest men the world has produced, upon retiring from public life, left this parting injunction in his farewell address to his countrymen: "Promote then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of government gives force to public opinion, it is essential that public opinion should be enlightened."

This was addressed to the people of the national government as then constituted. Congress, prompted probably to an extent by this sage suggestion, early began and has laudably continued to legislate liberally in the encouragement and support of public education. Helpful as this has been in the diffusion of knowledge with its consequent beneficial effects, it is after all upon the several states in their sovereign capacities, which should never be lessened, that the burden of promoting general intelligence rests. This State has not been loath to recognize the importance of this fact and in each of its constitutions has given it affirmative approval. The present constitution providing that. "A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the General Assembly shall establish and maintain free public schools for the gratuitous instruction of all persons in this State between the ages of six and twenty years." [Sec 1, Art. XI, Mo. Constitution.] Moved by the spirit which prompted the...