People ex rel. Mack v. Board of Education

Mr. Justice Craig delivered the opinion of the court: The principal question presented by the petition, answer and demurrer is, does the statute prohibiting the change of text books oftener than once in four years apply to boards of education in school districts having more than 1000 inhabitants? Section 26 of article 5 of the School law, (Hurd’s Stat. 1889, p. 1235,) which article defines the duties of boards of directors, is as follows: “It shall be the duty of the board of directors of each district— * * * Ninth—The directors shall direct what branches of study shall be taught and what text books and apparatus shall be used in the several schools, and strictly enforce uniformity of text books therein, but shall not permit text books to be changed oftener than once in four years, but shall prohibit such change.” Respondent contends that this section applies only to boards of directors of schools, and not to boards of education. In determining this question it will be necessary to consider this section in connection with that portion of the School act relating to boards of education. Section 1 of article 6 of the School law, which article is entitled “Board of Education,” is as follows: “Incorporated cities and villages, except such as now have charge and control of free schools by special acts, shall be and remain parts of the school townships in which they are respectively situated, and be subject to the general provisions of the School law, except as otherwise provided in this article.” The foregoing, being" the first section of the article relating to boards of education, must be regarded as applying to boards of education, and by the express terms of the statute boards of education are thus made subject to the general provisions of the School law, except as otherwise provided in article 6. Unless there is some provision in article 6 superseding it, or showing an intent on the part of the legislature to exempt boards of education from the operation of the provisions of this statute restricting the change of text books oftener than once in four years, it must be held applicable to boards of education. On examining section 10 of article 6, which provides that “the board of education shall have all the powers of the school directors, and in addition thereto and inclusive thereof they shall have the power and it shall be their duty,” (enumerating eighteen additional powers and duties,) and comparing it with section 26 of article 5, which enumerates the duties of school directors, we are forced to the conclusion that it was the evident intent of the legislature to make the duties and powers of school directors applicable to boards of education like respondent, otherwise boards of education would be without some essential powers which are enumerated only in those portions of the School act pertaining to the duties and powers of school directors. Many powers legally exercised by boards of education are found only in that part of the School law concerning school directors. The provision that teachers shall not be paid until they have kept and furnished schedules required by the School act, and shall have satisfactorily accounted for books, apparatus and other property of the district that they may have taken in charge; the provision requiring teachers to be paid monthly; the power to decide when the school house site or the school buildings have become unnecessary or unsuitable or inconvenient for a school; the power of eminent domain, and many other provisions which it is unnecessary to mention, are found only in the article of the School law relating to directors. Section 27, which clothes directors with additional powers, giving them, among others, the power to borrow money and to issue bonds for building school houses, purchasing sites, repairing and improving school houses, appears to be the only authority by which boards of education can exercise this important power. The ninth clause of section 26 of article 5 is the only provision in the School law which confers the power or duty to specifically direct what branches of study shall be taught and what text boolcs or apparatus shall be used in the several schools, prescribing uniformity of text boolcs but limiting the right to change text books oftener than once in four years. The only special provision in article 6, relating to boards of education, upon this subject, is the following, found in the tenth clause of section 10: “To prescribe the method and course of discipline and instruction in the respective schools, and to see that they are maintained and pursued in the proper manner.” This provision is not as comprehensive as the provision empowering boards of directors to direct what branches of study shall be taught and what text books and apparatus shall be used in the several schools, and was not, in 'our opinion, intended to supersede the ninth clause of section 26 of article 5. Another reason for the view that the legislature did not intend this is found in the fact that in the general revision of the School law in 1889, in that portion of article 6 applying to cities of over 100,000, (Laws of 1889, p. 308,) the ninth clause of section 23 is precisely like the tenth clause in question, viz., “to prescribe the method and course of discipline and instruction in the respective schools, and to see that they are maintained and pursued in proper manner.” Then follows the tenth clause in this section relating to powers of boards of education in cities of over 100,000. The legislature thought it necessary to provide therein, “to prescribe what studies shall be taught and what books and apparatus shall be used,” which tenth clause is almost identical with the ninth clause of section 26 of article 5. ' The power granted to boards in the larger cities by the ninth clause was evidently not regarded as sufficient to give boards of education power in regard to the school boolcs and apparatus to be used, consequently the power was given the board by the tenth clause. If it was necessary in the case of larger cities to prescribe the powers and duties of boards of education in regard to school boolcs and apparatus, it would seem necessary in the case of boards like the case at bar. Boards of education derive this power because it is primarily conferred upon boards of directors, and by the general provision upon boards of education. This being true, boards of education must be also subject to the restrictions imposed by the statute. The reason for prohibiting the change of text books oftener than once in four years undoubtedly was to save expense to parents of small means. Besides, it was regarded as detrimental to the pupils to change their text books too frequentty. If necessary to limit changes in districts under school directors we believe the reason holds equally good in cities and villages in districts under boards of education. We therefore hold that the statute prohibiting the change of text books oftener than once in four years must be held to apply to boards of education in school districts having more than 1000 inhabitants. The case of Kuenster v. Board of Education, 134 Ill. 165, cited by respondent, is not in conflict with the views expressed in this case, the court holding in that case that the statute having conferred the power and duty in respect to examining teachers and fixing their salaries, upon the board of education, it superseded the power and duties of the school superintendent. Are the books in question text books, within the meaning of the statute? The petition describes the books in question as “a system of text books consisting of twelve graded writing or copy-books, with printed forms and texts, scientifically arranged, with printed instructions to the pupil in each book and with a manual of instruction for the teachers.” This description is not denied in the ansvrer of respondent, but it denies they are text books. Penmanship is “one of the branches of education” required to be taught in the public schools. A teacher, to receive a certificate, must, upon due examination, be found qualified to teach penmanship. (Hurd’s Stat. 1889, sec. 3, p. 1243.) In determining whether the books are text books, within the meaning of the law, it will be necessary to inquire what text books are. Webster defines a text book as “a book or. manual used in teaching; a book for students, containing the principles of a science or any branch of learning.” Stormonth’s Pronouncing Dictionary defines a text book to be “a book to be used as a standard book for a particular branch of study, for the use of students.” The books here in question come within the definition given by Webster. They are books used in teaching* penmanship. Text books must be considered -with reference to the particular branch of study for which they are designed. Pules for instruction in penmanship are necessarily simple. The books described in the petition as “twelve graded writing* or copy-books, with printed forms and texts, scientifically arranged, with printed instructions to the pupil in each book and with a manual of instruction for the teachers,” must be regarded as text books for penmanship. Text books for instruction in arithmetic; or Greek or Latin, are books of a very different character, but still are text books applicable to the particular branch of study for which the author designed them. These books being for the teaching of penmanship, meet, in our judgment, the requirements of a text book. We are of opinion that a peremptory mandamus should issue, as prayed for in the petition of the relator, and it is therefore ordered. ,, ■, , 7 ,, , 7 Mandamus awarded.