State ex rel. School District No. 1 of Waukesha v. Thayer

Taylor, J. A writ of certiorari was issued out of this court upon the petition of the school district board above — 55 — named, directed to the state superintendent, for the purpose of bringing up for review by this court a decision made by said superintendent upon an appeal from the decision of the said school district board refusing to permit the minor child of Mrs. M. Y. Smith to attend the public school in said district. The school board refused to permit such minor child to attend its school, on the ground that he was not a resident of the district and therefore not entitled to the benefits of the school except upon payment of certain sums fixed by said board to be charged against nonresidents attending such school. Erom this decision of the school board Mrs. Smith, on behalf of her minor child, appealed to the state superintendent, and after a full hearing of such appeal upon proofs of all the material facts the superintendent reversed the decision of the school board and adjudged that the said minor child of the appellant, Mrs. Smith, was a resident of said school district within the meaning of the law governing school districts, and entitled to attend the school of said district without paying for tuition. Although the statute declares that the decision of the superintendent shall be “final” (see subd. 4, sec. 166, R. S.), this court has held that his decisions may be reviewed by this court by writ of certiorari (see State ex rel. Moreland v. Whitford, 54 Wis. 150; State ex rel. Foster v. Graham, 60 Wis. 395). This court said in State ex rel. Moreland v. Whitford, supra, that this court, upon a writ of certio-rari directed to the state superintendent, “would not review mere questions of fact, when there is any contention as to the proofs.” The only question in this case was whether the minor child of Mrs. Smith had a residence in the school district in the village of Waukesha, within the meaning of the laws concerning public schools. This might be a question of law upon a given state of facts; but the facts in this case were disputed, and if the facts áre as claimed by the appellant, Mrs. Smith, then there can be no — 56 — question as to the correctness of the decision of the superintendent. She claimed that her minor son had his home within the district, and, if so, he was clearly a resident within the meaning of the law. On the other hand, it is claimed by the district that, if he had any home, it was with his mother in Milwaukee, and that he was sent to Waukesha, not for the purpose of making a home for him there, but for the sole purpose of attending the school in such district. Upon this disputed question of fact the learned superintendent has found in favor of the claim of Mrs. Smith, and, under the rule above stated, such finding as to that fact is not reviewable in this court. It cannot be fairly contended that there was no evidence to support the finding of the superintendent. The allegations of fact made by Mrs. Smith are that she is the mother of the minor child in question, who is about the age of thirteen years; that in 1883 she was deserted by her husband, and she was left with three children, of whom the minor in question is the youngest; that she has been since such desertion compelled to provide for the support of said three children, and that the husband has provided no support for them; that she is a school teacher, and has no other business except teaching school; that she has no home of her own, and is now teaching in the city of Milwaukee, and boards, not keeping house on her own account; that she is unable to support and maintain her said children in the city of Milwaukee, and is compelled to provide homes for them outside of said city; that up to about one year ago her daughter Leafy Smith, and up to the month of August, 1888, her son Phillip Smith, the boy in question, had a home with her uncle, John Wagner, who resided in the town of Waukesha, near the village of Waukesha, at which place they attended the public school; that her daughter Leafy has since had a home in the village of Waukesha, and attended the public school there; — 57 — that on account of changes in the family of her uncle during the past season, by marriage, her son Phillip could no longer have a home there, and she was obliged to find a home for him in some other place, and.therefore she secured a home for him with the family of Dr. Mary A. Fox, in the village of Waukesha, and within the limits of said school district; that Phillip works for his board for said Dr. Fox, and has no other home or residence; that she did not send her said son to reside in WauTcesha, in said district, for the purpose of attending said school, hut such fact was incidental to his going there; that other considerations induced her to select said place for his residence and home; stating at considerable length the reasons for desiring that he should have a home in Waukesha village. She also states in her proofs that she is the legal guardian of said Phillip, but does not state how or in what manner she became such legal guardian, except that her husband deserted her, leaving said Phillip and the other children in her care and custody and dependent upon her for support. These statements of fact Avere not controverted by the relator in this case, and are found by the learned state superintendent to be true. In disposing of this proceeding, this court must consider the facts stated as sufficiently established by the proofs before the superintendent, under the rule stated above by this court in State ex rel. Moreland v. Whitford, supra. It is contended by the learned counsel for the relator that, admitting the facts alleged by Mrs. Smith and the other Avitnesses produced on her part to be as stated by them, they do not make out such a case of residence on the part of Phillip Smith within the school district of the village of Waukesha as entitles him to the privileges of the public school of such district. It is not denied by the learned counsel for the relator that if Phillip had such a residence within the district as would entitle him to be enumerated under the provisions of subd. 1, sec. 462, R. S., as amended — 58 — by oh. 107, Laws of 1879, then, he would be entitled to the privileges of the public school. It would clearly be inequitable and unjust to hold otherwise, as the public funds, which to a great extent maintain such school, are apportioned on the basis of the enumeration provided for in said section. The contention of the learned counsel is that a minor child who has a father or mother, or both, living, can have no residence for the purpose of the privileges of a public school different from the residence of the father, if living, and of the mother after the death of the father. While this may be the general rule, we think it clear that the statute above referred to, in regard to enumeration of children of school age, clearly contemplated exceptions to the general rule; and we think the argument of the learned superintendent in this case, as well as the long approval of his opinion by his predecessors in office, is conclusive against the contention of the learned counsel for the relator. We refer to such opinion, which will be reported in this case, for a full vindication of the practice established in the superintendent’s office. To establish the rule that a minor cannot have a residence for school purposes other than that of his parents would in many cases deprive such minor of all benefit of such schools. When the minor has poor parents, the poverty of the parents renders it absolutely necessary, in many cases, that a home for the minor children should be found in places different from that of the parents; and under the construction insisted upon by the learned counsel for the relator, such unfortunate children, for whose benefit our free schools were especially instituted, would be deprived of all benefit of them. Such construction of the law would be against its beneficent spirit, and should not prevail unless the language is so clear that no other can be given to it. We do not decide in this case, nor do we understand the learned state superintendent to decide, that the father or — 59 — mother or other legal guardian of a minor can transfer such minor from one school district to another for the sole purposes of having the privileges of the public school of the district to which he may be transferred. The rule in such case is very clearly stated by the learned superintendent in the following language: “Effort has been made to guard against the precipitancy of nonresidents to points where superior advantages exist and schools of high order are maintained, by holding that such children only are entitled to free tuition as are actually residing in the district for other, cis a main purpose, than to participate in the aclvan-tages which the school affords.” “This appears to be a just and equitable view to take, and one to which neither party should object.” The facts in this case, as found by the learned superintendent, support the contention of his mother that Phillip Smith was sent to reside in the village of Waukesha in order to give him a suitable home in the family of Mrs. Dr. Eox, and that the main purpose was not to participate in the advantages of the public schools of such village. The rule above stated was recognized by the supreme court of Mew Hampshire in the cases of School Dist. v. Bragdon, 23 N. H. 507, 516, and School Dist. v. Pollard, 55 H. H. 503, and, as said by the learned superintendent, is “just and equitable.” By the Oourt.— The decision of the state superintendent herein is affirmed.