State ex rel. Walsh v. Hine

Torrance, J. By an act of the legislature of this state approved March 7th, 1889, and taking effect from its passage, it was provided as follows:—“ The secretary of the state board of education shall ex officio be a member of the school committee of every town and school district in which is situated a school whose teachers are appointed by the state board of education, and shall have all the powers and duties of the other members of such school committee.” Public Aets of 1889, chap. 125. In the town of New Britain is situated the state normal school, whose teachers are appointed by the state board of education. The respondent is secretar}7 of the board and as such has, ever since the eleventh of May, 1889, exercised, and claimed the right to exercise, under said statute, the office of a member of the school committee of the town of New Britain. The case at bar is an information in the nature of a writ of quo warranto to determine the right of the respondent to exercise such office. In his plea to the information the respondent set up the above facts in justification of his right to act as a member of the committee, to which plea the relator demurred on the ground that the act in question is unconstitutional and void, and the questions so arising upon the record are reserved for the advice of this court. The relator claims that the act is unconstitutional, first, because it violates certain express provisions of the constitution of this state, and second, because it violates certain fundamental principles impliedly recognized in and by that instrument, which he- claims are just as obligatory upon the legislature as if they were expressly contained therein. The only express provisions of the constitution which it is claimed the act in question violates, are the two following :—“ Every town shall annually elect selectmen and such — 59 — officers of local police as the laws shall prescribe.” Art. 10, sec. 2. “The rights and duties of all corporations shall remain as if this constitution had not been adopted, with the exception of such regulations and restrictions as are contained in this constitution.” Art. 10, sec. 3. Under the first of these provisions it is claimed that the power to elect officers of local police is vested solely in the towns ; under the second, that the right to elect their own town officers, which it is claimed had, prior to the adoption of the constitution, existed in the towns from the foundation of our government, remains to them as before. If we concede for the sake of the argument that, so far as officers of local police and ordinary town officers are concerned, these claims are well founded, it will not help the relator unless the members of school committees elected by towns, as is the case in New Britain at present, are either officers of local police within the meaning of the constitution or are ordinary town officers, which it is claimed the towns have always had the right to elect. If the right to elect members of a school committee was not a right which existed in towns at the time of .the adoption of the constitution, then it was not one of the rights reserved to them under section 3 of article 10 above quoted. But at the time of the adoption of the constitution the towns in this state possessed no such right. For a long time prior to, and at the time of its adoption, the towns as such had nothing to do with the election of school committees or other officers having charge of educational matters within the town limits. These committees and officers were elected then, as they have to a large extent been elected since, by school societies and school districts, formed at the will of the legislature and frequently without regard to town lines. The claim then that the right to elect school committees was a right which existed in towns prior to the adoption of the constitution and which therefore remained in the towns after its adoption by the express provision above quoted from sec. 3 of article 10, is without foundation in fact. The other claim, that members of a school committee, — 60 — when elected by a town and not by a district or society, are officers of local police, within the meaning of the constitution, is equally without foundation. From the earliest period in the history of Connecticut the duty of providing for the education of children was regarded as a duty resting upon the state—a governmental duty. Both before and since the adoption of the constitution, that duty was, and has been, performed through the instrumentality of towns, societies and districts, as the legislature from time to time saw fit. In so far as these subdivisions of the territory of the state were used for the performance of this duty, they were the mere agents and instruments of the state, liable to be changed at its pleasure,, and used by it from time to time solely because the object in view could in its opinion be more effectually and economically accomplished through such agencies, than in any other way. At the time of the adoption of the constitution this governmental duty was, as above stated, performed principally through the instrumentality of the school society and the school district, and not through the town, as indeed it has continued to be ever since. The powers conferred and duties imposed upon these territorial subdivisions in the matter of education, related entirely to the performance of this governmental duty, and such powers were exercised and duties performed by committees.and other officers elected by the society or district and not by the towns. It cannot therefore be supposed that when the constitution was adopted its framers understood, when providing for the election of town officers, that the phrase “ officers of local police ” would include within its meaning the members of school committees, whether of society or district. And that the phrase “officers of local police” does not include within its meaning the members of school committees and other officers having charge of schools and educational matters sqlely, whether elected by the town or not, is obvious from another consideration. The word “ police,” when standing alone,is quite ambiguous. Bouvier thus defines the word. “Police. That species of superintendence — 61 — by magistrates which has principally for its object the maintenance of public tranquillity among the citizens. The officers who are appointed for this purpose are also called police. * * * Police has been divided into administrative police, which has for its object to maintain constantly public order in every part of the general administration; and judiciary police, which is intended principally to prevent crimes by punishing criminals.” Bouvier’s Law Dict., in verbum. This meaning of the word “ police,” when coupled with the word officer or officers, was doubtless quite well known to the eminent lawyers who took part in framing our constitution, and in the phrase “ officer’s of local police ” the framers of that instrument must be supposed to have used the word “ police ” in its ordinary sense, with which courts and lawyers and people generally were familiar. Using the word “ police ” in this sense, the phrase “ officers of local police,” whatever else it includes, does not include school committees and other officers having charge solely of educational matters, any more than it does assessors, and this court has decided that assessors are not officers of local police. Dibble v. Merriman, 52 Conn., 214. The mere fact that the members of the school committee of New Britain are now elected by the town, instead of by districts within the town, can make no difference. If they were not officers of local police when elected by the society or school district, neither are they when elected by the town. The mode of election does not change the nature of the office, so long as the powers and duties pertaining to it remain the same. The fact that assessors are elected by the town does not make them officers of local police. It follows therefore that the act in question does not violate any express provision of the constitution. But the relator further earnestly contends that the act is void for certain reasons, which are stated in the demurrer as follows:— “ Because towns have the inherent right to local self-government, the most vital principle of which is the sole right to choose their own officers, which in a republic cannot be de — 62 — nied them, and the attempt of the General Assembly to deprive them of such right is void. “ Because the alleged appointment of the respondent, by virtue of the act of the General Assembly, without the choice being made or approved by the inhabitants and electors of the town, is contrary to natural right and justice and in violation of the social compact, and is therefore void.” We have no occasion to decide, or express any opinion upon, the question raised by the first of the above reasons of demurrer, as to whether, in the absence of express constitutional provision, the right of towns to elect their own officers could or could not be denied to them, as it is not involved in the case at bar. If the reasoning and the conclusions arrived at in the former part of this opinion are right, then towns in Connecticut have no inherent right to elect school committees and never had. In the absence of constitutional restriction we think the legislature may provide that school committees, whether of a town or a district or society, may be composed of anjr persons and chosen in any manner that it may prescribe. In answer to the second reason of demurrer above quoted, in addition to what has been heretofore said, it should be remembered that the state, in the performance of its duty to furnish a common school education to the children within its borders, pays large sums of money annually to the towns and other subordinate agencies employed by it in the performance of this duty; that it has established in New Britain and maintains there, at large expense, a normal school for the purpose of promoting the cause of education through-. out the entire state; and that it has established and maintains a state board of education with power of “general supervision and control of the educational interests of the state.” • If, under such circumstances, the legislature, for reasons of its own, sees fit to make the secretary of the state board of education ex officio a member of the school committee of the town where the state itself has such interests, it can hardly b'e said' with reason that such action is contrary to — 63 — natural right and justice and violates the social compact, whatever these vague phrases may mean. The inhabitants and electors of New Britain have no so-called natural right to elect the entire school committee of that town, nor is such right secured to them by any real or fictitious social compact, and therefore the act in question does not infringe upon or violate any such rights. The Superior Court is advised that the return is sufficient. In this opinion the other judges concurred.