State ex rel. Prchal v. Dailey

BURCH, J. In 1881 the Dakota Territorial Legislature passed chapter 99, 'Session Laws of 1881. That part of said chapter material to the .issues in this case provides: “That a Normal School for the Territory of Dakota be established at Madison, in Lake County, D. T., the exclusive purpose of which shall be the instruction of persons- 'both male and female in the art of teaching and in all the various -branches that pertain to a good common school education; also to give instruction in the mechanical arts and in husbandry and in agricultural chemistry, in — 557 — the fundamental laws of the United States' and in what regards the rights and duties of citizens.” Section x. By a similar provision chapter ioo of the same Session (section i) provided for a normal school at Spearfish, Lawrence county, and chapter ioi (section x) provided for a normal school at Springfield, Bon Homme county. The purpose declared in the original act has been carried forward in all subsequent legislation without material change andi now appears as section 5611, Rev. Code 1919. During territorial days the schools were under the direction of a board of education. At the beginning of statehood the control of the schools was conferred upon the Regents of Education by the Constitution. The Constitution, article 14, § 3, as amended in 1896, provides: “The state university, the agricultural college, the normal schools and all other educational institutions that may be sustained either wholly or in part by the state shall be under the control of a board of five members appointed by the governor and confirmed by the senate under such rules and restrictions as the legislature shall provide. The legislature may increase the number of members to nine.” The regents in the exercise of their control over these normal schools have provided a course of study for the training of teachers to qualify them to teach in the grade schools below the high school, and this course may be fairly said to be within the declared purpose for which the schools were created. We do not understand that there is any serious issue as to the authority of the board to prescribe the curricula of the schools so long as they are confined to training teachers for teaching in the public schools of the state below the rank of high schools. But the regents have prescribed additional curricula for these schools leading to advanced degrees, have changed the names of the schools designating them as colleges, and have established them as teachers’ colleges authorized to teach a college course and to train teachers qualified to teach in the high schools and other higher institutions of learning. We think the issues are sufficiently apparent when we say that none of these schools are confined exclusively to the training of teachers for the common schools below the grades of high schools. Relator, claiming that the regents have exceeded their authority in making of these normal schools, teachers’ colleges, brings — 558 — this action in prohibition to prevent a continuance of such unauthorized acts. The learned trial judge denied the writ, and relator appeals. .Without regard to technical accuracy, we will for convenience in this opinion refer to public schools below and including the eighth grade, as grade schools, and those above as high schools. When speaking of courses of study, taught in higher institutions of learning we will speak of them as college courses. Before discussing the issues involved in this case, a few general observations may be of use in understanding- and applying the principles .necessary to a correct solution of the case. Education has always held a high place in the minds of the people of this country. Our state Constitution (article 8, § 1) provides: “The stability of a republican form of government depending on the morality and intelligence of the people, it shall be the duty of the legislature to establish and maintain a general and uniform system of public schools wherein tuition shall be without charge, and equally open to all; and to adopt all suitable means to secure to the people the advantges and opportunities of education.” In State ex rel. Eveland v. Erickson, 44 S. D. 63, 182 N. W. 315, 13 A. L. R. 1189, Judge Whiting speaking for this court (page 68 of 44 S. D., 182 N. W. 315, 316) said, “During the whole history of our nation, religion and education have been recognized as the foundation pillars of American civilization.” Naturally education holding so important a position has been the subject of a great deal of legislation, and many changes have been made in the laws from time to time to meet new conditions. Wbat would have been considered a good average education in 1881 would not be so considered today. Standards of education have advanced, and methods of teaching have changed. Bitt we think it is elementary that the people through their Legislature and the Constitution have a right to control and prescribe the limits to which they will go in supplying education to the children and youth of the state at public expense. Neither educators nor administrative boards can expend public funds for education, unless the education for which it is expended is authorized by law. If that is true, we must look to the Constitution and the statutes of this state for the authority of the regents to maintain the normal schools involved in this action as the teachers colleges. The affection of the people for — 559 — education and the history of its advance are important in construing the statute, but not important as a reason for upholding the acts of the regents if such acts are not authorized by the statutes when properly construed. Any need for advanced courses in these schools may be urged upon the Legislature as a reason for more legislation, but not upon this court to sustain the action of the regents. The question before us is: Are they authorized? Since the regents have greatly advanced the courses of study that may now be pursued in these schools, over the courses prescribed in their earlier history, and since these courses are not obviously within the purpose for which the schools were declared to have been established in the enactments creating them, we turn first to the arguments of respondents by which they seek to sustain their conduct. Respondents’ first contention is that under the Constitution this action cannot be maintained. They argue that the “control’’ of the institutions necessarily includes the power to prescribe their curricula. Conceding for the sake of argument that this is true, it does not necessarily follow that curricula foreign to the purposes for which the schools were established can be prescribed. The curriculum of a school very largely determines its character. Xo one would contend that the regents may create and establish state schools and colleges at will. Suppose the regents were to prescribe that the curricula of all the schools and colleges of the University be followed and taught in the State 'College of Agriculture and the curriculum of the 'State College be followed and taught at the University, might they not be justly charged with having moved the University to Brookings and the State College to Vermillion? No one would contend that could be done under the guise of prescribing the curricula of the schools. The curriculum must conform to the character and purpose of the school. But it may be suggested that where the course of study is appropriate to fulfill and conform to the purpose it is not subject to objection because it goes further and supplies an opportunity for more education than is required by the state to teach a grade school so long as those desiring to qualify for a grade school only are not required to take the additional courses. But the answer is that the additional courses may amount to the creation of another and higher school. We think it must be conceded that these nor — 560 — mal schools, although they may properly be classed as normal schools within the restricted meaning contended for by relator, are also now teachers’ colleges. Unless they were created colleges or created capable of becoming colleges by the statutes of 1881, they have been so created by the regents. There is no direct specific subsequent legislation to effect that change, and since the regents have no power to establish schools or colleges, their action cannot be sustained unless authority therefor can be foundi in the Constitution, the acts creating the schools, or in general legislation prescribing the duties and powers of the regents. The Constitution places these schools in “control” of the regents “under such rules and restrictions as the legislature shall provide.” Respondents cite State v. State Board of Education, 33 Idaho, 415, 196 P. 201, 205, and Board of Regents v. Auditor General, 167 Mich. 444, 132 N. W. 1037, to support their view that the regents under the Constitution are supreme in all matters pertaining to the management of the schools. Those cases involved the expenditure of money belonging to the state university. In Idaho the question was whether the regents might expend the funds independent of the audit of the stdte board of examiners (a board for the audit of all claims against the state), and it was held claims against the regents were not claims against the state and the regents could expend the funds of the University 'and audit their own claims without interference from the board of examiners. It is said in the Idaho case: “The Board of Regents is a constitutional corporation with granted powers, and while functioning within the scope of its authority is not subject to the control or supervision of any other branch, board or department of the state government.” In the Michigan case the question was whether the judgment of the Auditor General or that of the Board of Regents should prevail in the expenditure of money appropriated 'by the Legislature for the University. The court held that the regents had control of the expenditure of the fund, but said, if the appropriation was made upon any conditions, those conditions must be complied with if the regents accepted the appropriation. The extent of the regents’ control of the funds of the' schools under their control has never been squarely before this court, but in Johnson v. Jones, State Auditor, 52 S. D. 64, 216N. W. 584, we held that while it was competent for the' auditor to question the authority of the regents to — 561 — make an expenditure, he could not substitute his judgment as to its propriety, There is nothing in these cases to support the view that the regents are supreme in control of the curricula of the schools. And though it be conceded the regents have very broad powers in respect to the curricula of the schools-under their control, it is self-evident they cannot by the exercise of that power change their character. The second contention of respondents is that a writ of prohibition should not issue. They say such writ is discretionary and ought not to issue if the regents have acted honestly and in good faith in an honest exercise of a discretion legally vested in them. Conceding this to be sound, the court is not at liberty to refuse the writ if the acts complained of are not within a legally vested discretion. If the acts are unauthorized, the good faith -with which they are performed cannot authorize them. As heretofore intimated, the regents have no authority or discretion in creating and establishing schools. No matter how much they may see the need of teachers’ colleges to train teachers for schools above grade schools, they cannot create such schools, but must present their needs to the Legislature and obtain such schools by legislation or go without. Respondents’ third contention that-the facts do not warrant the issuance of the writ presents the chief and most difficult issue in the case. We have quoted the statute declaring the purpose of these schools, and it remains to be. seen if the declared purpose does restrict them to the training of teachers for grade schools only. At the time the schools were created in 1881, normal schools were known to the educational system of this country. In the Fourteenth edition of the encyclopedia Britannica, vol. 21, p. 862, it is said: “Teacher training schools in the United States, exclusive of departments of education in colleges and universities, fall into five general classes; State normal schools, State teachers’ colleges, city normal schools and teachers’ colleges, county normal schools and high schools and private normal schools.” This classification indicates there is now a recognized distinction between normal schools and teachers’ colleges. Further in the same article Britannica says: “Normal schools were established for the purpose of training teachers for the common schools, which generally — 562 — meant the ungraded schools.” The purpose of these normal schools declared by our statute is to instruct in the art of teaching and in all the various branches that pertain to a “common school” education, with certain other specifically enumerated subjects. If the words “common' school” then referred to ungraded sohools, and restricted the branches to be taught to1 those that pertain to such schools, those words now must refer to the present so called grade schools, as such schools now occupy the same place in our public school system as the 'ungraded schools then did. If that is the construction to- be placed upon the statute, these normal schools were orginally established for the exclusive purpose of training teachers for the common schools as then known and for the grade schools as now known. Tracing historically the rise in rank of some of the normal schools, we find in Britannica this summary: “The rise of many normal schools to the rank of teachers’ colleges was a natural result of the development of education and especially of the remarkable growth of the high school. From the very first some of the normal school graduates, especially in the middle west found their way into high schools; entrance requirements were gradually advanced, and in some the curriculum was extended to four years. In 1893 the Normal school at Albany became the Albany State Teachers’ College and began to confer degrees. In 1897 the Michigan State Normal School became the Michigan State Normal College and was given the power to^ grant degrees. Other states in the middle west soon followed.” Whether any change in rank was effected in other states without specific legislation we do not know. We have made some investigation and found specific legislation. We have found no case in which the raise in rank without legislation has been effected and sustained by the court, and no such case has been called to our attention. We can see very good reasons for holding it cannot be done. New York state has one or two normal colleges and many normal schools. Other states have both normal schools and normal colleges. If a normal school can be permitted to rise to the rank of a college without legislation, the natural ambition of the school managers might result in all the normal schools of a state becoming colleges and completely wipe out the normal schools. The grade schools are a very important part of our public school system. They are the schools guaranteed by our Constitution and the ones that the Legislature by that instru — 563 — ment is required to maintain. Teachers for such schools must be paid at public expense, no tuition can be charged, and the state is vitally interested in supplying a full quota of trained and qualified teachers. That may properly be the first concern of the Legislature and its right to supply and train such teachers cannot be denied. It may be said a teacher qualified to teach in the high schools is just as well qualified to. teach a grade school. Maybe so, but unless the same wage level prevails in both schools it cannot be expected that a high school teacher will accept employment in a grade school. To qualify a grade school teacher for teaching in the high schools or higher educational institutions, including private and highly endowed colleges, may result in a great shortage of teachers for the grade schools. It may also be a debatable question as to whether a qualified high school teacher is as well qualified to teach a grade school as one trained for that purpose. Educators have recognized the need of specially trained primary teachers, and it ma}r be there is a need for specially trained grade school teachers. It is quite conceivable that education might be advanced by a high scale of wages in the higher institutions of learning securing the highly trained professional educators and a lower .wage scale in the grade schools where less learning but special training is required, than by an attempt to reach a high professional standard for all schools with uniform wages. An adequate professional wage scale in all the grade schools might be prohibitive in cost, while an inadequate wage to the highly trained professional might drive such teachers to other more lucrative occupations and the value of their services be lost to the state. It is not plain that specializing in educational work is undesirable. Where there can be an honest difference of opinion as to the proper course to pursue, the adoption of the course becomes a matter of policy. It is for the Legislature to determine the educational policy of the state, not for this court or the regents. But respondents are not content to construe the words “common school” as synonymous with grade school, but take the position that “common school” means public schools and that a high school is as much a part of the public school system as a grade school. There is some force to this argument when it is considered that the ungraded schools in 1881 composed nearly all of the public school system, and “common school” was a term prac — 564 — tically as broad when limited to ungrade schools as when extended to include the whole public school system. Because of this it is now more difficult to determine what was intended by the term, but the fact that the term in either sense was then co-extensive in meaning does not determine its meaning in favor of respondents’ position. Other facts may determine the true sense and point the way to a correct interpretation. All or nearly all of our high schools in this state have been established since' 1881, but' have always been recognized as a distinct class of public schools known and designated as high schools. And when we consider that higher education, though now a part of the public school system, has taken distinct form and advanced under a distinct classification within that system without materially affecting elementary school classification, we think the term “common school” must adhere to the elementary schools secured by the Constitution and cannot be extended to include other schools adopted later and incorporated in the public school system as a specific class. This is especially true where to give the term a more comprehensive meaning would be to remove all restrictions upon the activities of these normal schools and make of them colleges not only for the training of teachers but for the instruction of all pupils who desire a college education. Respondents cite Dickinson v. Edmondson, 120 Ark. 80, 178 S. W. 930, Ann. Cas. 1917C, 913; Richards v. Raymond, 92 Ill. 612, 34 Am. Rep. 151; (Stuart v. School Dist., 30 Mich. 69; and Board of Education v. Welch, 51 Kan. 792, 33 P. 654, to show that the meaning of the words “common school” is not confined to grade schools, but that high schools may be a part of the public school system for providing a good “common school education.” But the cases cited involved the constitutional right of the Legislature to create and maintain high schools as a part of the public school system under a Constitution providing for common schoools. In those cases the word “common” has been held to be synonymous with “public” and to refer to education and schools open to the public as a whole and supported by general taxation. Obviously no such meaning can be given to the word “common” when used to express a class of public schools. The power of the Legislature to maintain high schools, or even colleges and a university, by funds derived from taxation, has never been questioned in this state. — 565 — Should the right of the Legislature to' maintain high schools, vocational schools, or other special schools as a part of the public school system be questioned, or the right to use any part of the permanent school funds derived from school lands, escheats, and other sources provided by law for the support of such schools be denied-, the cases above cited would merit very careful consideration, but they have no application to the precise question now before us. The question before us does not involve the power of the Legislature to create teachers’ colleges. The question, is: Has the Legislature done so? Recognizing the right of the Legislature to maintain, if desired, normal schools for the training of grade school teachers only and finding a statute which in its inception created only such schools, it cannot be extended to create teachers’ colleges unless the language used anticipates the change. There is no such language. If the Legislature desires, it is a simple matter to expressly create one or more teachers’ colleges in this state. There should be no strained construction of the statute to effect a result so easily obtained by plain enactment if needed or wanted. In section 7511, Rev. Code 19x9, the Legislature has plainly used the words “common schools” as descriptive of elementary schools, a class of schools below the grade of high schools. We do not attempt to define their meaning in all statutes, but confine our interpretation to the statute under consideration. We are forced to conclude that the exclusive purpose of these normal schools is the training of teachers for grade (elementary) schools, or that there is no limit to their activities in the training of teachers for public or private schools or any institution of learning. To hold there is no limit would defeat the original intent of the statute to at most confine the schools to the training of teachers for public schools. By holding that the exclusive purpose declared is a real limitation we leave the growth of these schools to the Legislature, while if we hold otherwise for all practical purposes we take the control from the Legislature. To construe the statute as fixing no limit in the face of the language would be unreasonable. To fix any other limit than heretofore indicated would be arbitrary. We think the statute, while not entirely plain, was originally intended to establish normal schools as then known and understood (namely, schools for the training of teachers for elementary schools), and that the functions of such schools did not then — 566 — include the training of high school teachers; that though the high school has since ¡become a more common and important branch of the public school system, there is nothing in the statute covering or contemplating such growth, so that at this time such schools can fairly be said to have been included in the declared purpose. Finding no authority for the acts of the regents in the Constitution nor in the act creating the schools, it remains to be seen if the general statutes prescribing the powers and duties of the regents give such authority. Sections 5562-5587, Rev. Code 1919, prescribe the duties and powers of the regents. The section most strongly relied upon by respondents is section 5575, providing: “The board of regents shall have power to establish such departments and courses of study, in the institutions under its control, as it may think best, to determine what text books shall be used, what requirements for the admission and graduation of students shall be maintained, what rules shall be enacted and enforced for the government of students, and such board shall have power to make all other rules and regulations for the wise and successful management of the schools under its control; and to delegate, provisionally, to the president, dean, principal or faculty of any school under its control, so much of the authority conferred by this section as in its judgment seems proper and in accordance with the usual custom in such cases.” But this section must be construed in connection with the other sections cited above, and when so construed it is plain the power to establish departments and courses of study are limited to the needs of the schools in effecting the purpose for which they are maintained. Section 5573 provides, in part: “Except, as otherwise expressly provided in this code, the board of regents shall have power to govern and regulate each institution under its control in such manner as it shall deem, best calculated to promote the purpose for which the same is maintained.” And the last sentence of section 5578 provides: “The board shall at all times so administer the schools as to enable each one of them to do in the best manner its own specific work, with a view to the strictest economy, and so as to unify and harmonize the entire work of all the schools under its control.” — 567 — These provisions plainly fix the limits of the powers granted the regents. We do> not find anything in the legislation that can fairly be said to delegate power to the regents to change the purpose, character, or scope of any school under their control. Respondents submitted an able brief and it has received careful consideration. They cover the history of school legislation, point to the statutory requirements for teachers' certificates, and make a point of a statute permitting the introduction of high school subjects in some rural schools where ordered by the school board, in which event a higher grade certificate is required than in grade schools where such subjects are not taught. They review normal school legislation and call particular attention to legislative appropriations for these normal schools which they claim indicate an assent by the Legislature to the changes made by the regents. And they point to a time when relator in the state senate made an unsuccessful attempt to secure legislation restricting the curricula and the course of these normal schools to two years. But we find little in the history of legislation to aid us. The requirement that grade schools which include high school subjects must employ teachers with high school qualifications does not support the contention that normal schools restricted to training teachers for the grade schools can also train high school teachers. The statute requiring a higher certificate for the mixed school giving both grade and high school courses is a restriction on the school boards of such schools. It does not confer additional duties and powers upon the normal schools. There is nothing to- indicate the Legislature did not intend such boards to get their teachers from the same source as the high schools. Concerning the appropriations they do not amount to- an amendment of the statute creating the schools. At most'they merely show an interpretation or an acquiescence in an interpretation of such statute contrary to the expressed purpose. But we do not think an appropriation in the general appropriation bill amounts to an interpretation. It amounts to no more than an acquiscence in the unauthorized act for the time being without objection. Under the subject “Art of teaching,” respondents say “the art of teaching” calls for and requires proper instruction in all of the subjects which a student in the normal schools may be required to teach in the public schools. This is not obvious. — 568 — It might well foe that a teacher entering a normal school for training could be required to possess such knowledge before being allowed to enter. Many professional schools do require some education before matriculation in such schools. Law and medical schools require learning in college courses not offered by them but which must foe acquired elsewhere. The art of teaching as a professional course may alone cover a considerable field, but we cannot see why it need cover any subject to be taught. In the statute the art of teaching is recognized as distinct from the subject to be taught. Subjects that pertain to a common school education are easily ascertained by recourse to the grade school course. The argument that the teacher of a grade school will be greatly improved by a college education and that the background furnished by such an education will be of such benefit as to warrant its requirement by the regents is not tenable. To sustain that contention would be to remove all restrictions and leave the regents supreme in prescribing the qualifications for teachers. The Legislature has in the past and does now prescribe the character of the certificate to entitle one to teach a grade school. The regents cannot increase those requirements. These normal schools being established for the exclusive purpose of training grade school teachers cannot be used in whole or in part to train high school and other teachers without legislative authority. Such authority we do not find. It is not an answer to say a teacher trained and qualified to teach a high school is also qualified under the statute to teach a grade school. As heretofore indicated, the welfare of the common schools may be in the opinion of the Legislature better protected by providing a large supply of well qualified and highly trained teachers for such schools who are not qualified to teach elsewhere and who if they teach must teach in the grade schools. If the Legislature should be of this opinion, it would certainly have a right to establish schools for that purpose. These schools have been established by the terms of the act for an exclusive limited purpose, and without legislative action such purpose cannot be enlarged. We realize the impracticability of confining the curriculum of any school to hard and fast rules. The curriculum of these schools must be largely within the discretion of the regents. The limits within which the discretion must be exercised will be readily discerned if the regents will bear in mind that these schools are teacher training schools — 569 — for grade school teachers. If the present one or two year courses are sufficient to qualify teachers for such schools, that is all that should 'be given. But there can be no reason why such courses shall not conform to the first years of a teachers’ college so that students taking the first years in these schools shall receive credit therefor if they afterwards pursue a higher education in the college. No one questions the good faith of the regents in what they have done in raising the rank of these schools. Equal good faith in reducing their rank to the limits prescribed by statute ought to be accomplished without difficulty or disputes. The judgment and order appealed from will be reversed. Entry of judgment however will be deferred to July i, 1931, pursuant to the suggestions contained in the concurring opinion of CAMPBELL, J. BROWN, P. J., and POLLE-Y and SHERWOOD, JJ„ concur.