Otken v. Lamkin

Chalmeks, J., delivered the opinion of the court. The system of public education established and ordained by art. 8 of our Constitution contemplates the creation and maintenance of “ a uniform system of free public schools,” superintended and controlled by State officials. They are to be supported out of the common-school fund established by sects. 6 and 7 of the article in question; and if this fund be-insufficient, it must be supplemented by the direct taxation authorized and contemplated by sect. 10. At least one school must be maintained in each school district for four months in the year; and if any district fails to do this, it forfeits its share of the fund, under the provisions of sect. 5. The schools in each district are to be under the supervision of the county superintendent, created by sect. 4; and this officer is to be appointed by the State board of education, provided for by sect. 3, until such time as the Legislature may see fit to make him elective by the people. “ The general supervision of the common schools, and of the educational interests of the State,” are confided to the State superintendent of education, created by sect. 2, who is to be elected by the voters of the State, for a term of four years, at the same time that the governor and other State officers are chosen. It is lastly provided, by sect. 9, that “ no religious sect or sects shall ever control any part of the school or university funds of this State.” — 764 — It is manifest, under these provisions, that no portion of the school fund can be diverted to the support of schools which, in their organization and conduct, contravene the general scheme prescribed. That is to say, the fund must be applied to such schools only as come within the uniform system devised, and under the general supervision of the State superintendent and the local supeiwision of the county superintendent, are free from all sectarian religious control, and ever open to all children within the ages of five and twenty-one years ; though this freedom of admission to all will not preclude the classification of the schools according to the age, sex, race, or mental acquirements of the pupils, — provided, only, they remain free to all who come within the class to which the particular school is set apart. The act of March 5, 1878, entitled “An act to encourage the establishment of high-schools and colleges in this State ’ ’ (Acts 1878, p. 123), is plainly violative of these constitutional requirements. It attempts to devote the proportionate share of the school fund to which each child in the State, within the prescribed age, is entitled, to the benefit of the private academies and colleges which the children may elect to attend in preference to free schools established by law. It provides, in effect, that whenever a child has attended a private institution of learning, which has secured for itself a suitable building and a library of two hundred bound volumes of miscellaneous literature, and is conducted by a teacher or teachers of good moral and educational standing, such child, whether the school so attended by him be within or without the school-district in which he resides, may receive from the common-school fund the same pro rata share of said fund as if he had attended the public free school of his district. There is no requirement, in' the law, that these private institutions shall be free from sectarian control in religious matters ; it is manifest that they are not to come under the supervision, in any respect, of the State or county superintendent; and, so far from being free, it is expressly enacted that the pupils attend — 765 — ing them shall pay the full tuition exacted by the private persons conducting them, who can, of course, exclude any pupils they see fit, since the schools are wholly private establishments, over which the law has no control. To hold that the common-school fund can be diverted to the building up of private educational enterprises of this character, would be plainly violative of the fundamental purpose of its creation and of the constitutional safeguards thrown around it. If it needs adjudications and authorities to show that the scheme is violative of the letter and spirit of our organic law, they are abundant in other States, where, under constitutions substantially similar to ours, such schemes have uniformly been held unconstitutional. Gordon v. Carnes, 47 N. Y. 616; The State v. Springfield, 6 Ind. 86; Board of Education v. Brooklyn, 13 Barb. 409; The People v. Allen, 42 N. Y. 404; Hulbert v. Sparks, 9 Bush, 260; Collins v. Henderson, 11 Bush, 76. It is urged that sect. 1, art. 8, of the Constitution provides for the establishment both of common schools and of “ schools of higher grade; ” that it is to the common schools only that the subsequent sections apply, but as to the schools of higher grade, the Legislature is wholly untrammelled by constitutional restrictions, and may therefore adopt as its own the private academies already existent in the State. The position proves too much ; because, if the subsequent sections of the article do not apply to the schools of higher grade, but only to those for elementary instruction, it follows that the former must be excluded from participation in the fund provided by sects. 6 and 7, and must rely upon such other provision as the Legislature may make for them. If, therefore, the private institutions sought to be benefited under the act of 1878 are to be regarded as the schools of higher grade spoken of in the Constitution, and, as such, free from the limitations imposed as to the common schools, they must equally, under this theory, be excluded from participation in the school fund. The argument is fallacious in assuming that the higher-grade schools, when estab — 766 — lished, will not -fall under the general scheme prescribed. They will be^ equally entitled to share in the common-school fund, ih such ratio and to such amount as the Legislature may deem proper, and will be equally subject to the restrictions imposed by the Constitution, so far as appropriate. Judgment affirmed.