
    No. 12,753.
    The State, ex rel. Andrew, v. Webber et al.
    
      Schools.—Regulation of Studies.—Discretionary Power of School Authm-ities.— Suspension of Pupil.—Mandamus to Compel Readmission.—A rule, prescribed by the superintendent of the free graded schools of a city, with the sanction of the trustees, that the pupils in the high school department shall at stated intervals employ a certain period of time in the study and practice of music, for which purpose they shall provide themselves with a prescribed boob, is an exercise of discretionary power conferred by law, and unless the regulation is shown to be unreasonable, or a satisfactory excuse for failing to comply therewith is given, mandamus will not lie to compel the school authorities to readmit a pupil who has been suspended for disobedience thereof.
    From the Laporte Circuit Court.
    
      J. H. Bradley and L. A. Cole, for appellant,
    
      A. Anderson and M. Nye, for appellees.
   Howk, C. J.

On the 19th day of November, 1885, the ■appellant’s relator, Abram P. Andrew, filed his verified complaint or affidavit herein, in the court below, wherein he stated that he was a native-born citizen of the United States and of this State, and was then, and for more than ten years last past had been, a bona fide resident householder, freeholder and taxpayer of the city of Laporte, Indiana, and that he then resided, and for more than five years last past had resided, in the third ward of such city; that the appellees Leroy D. Webber, Edward J. Church and Ellis Michael, were the acting board of school trustees of such city, and as such trustees were in charge of the public schools of such city; and that the appellee William N. Hailman was employed by such board as the superintendent of such public schools, and as such superintendent had, under the direction of such board of trustees, the general management, oversight and supervision of such public schools.

The relator further said, that he was the father and natural guardian of one Abram Andrew, who was a white male child, between the ages of six and twenty-one years, to wit, of the age of twelve years, was unmarried, resided with the relator in the third ward of such:, city, and had so resided with, and been subject to the control of, his father, the relator, ever since his birth; that said Abram Andrew was, in all respects, legally qualified and entitled to attend the public schools of such city as a pupil thereof, and to receive instruction therein ; and that, for three years next preceding the grievances thereinafter stated, said Abram Andrew had, in pursuance of his rights and of the relator’s rights and wishes, attended such public schools as a pupil therein, during all which time he had been an obedient and diligent pupil, and had faithfully complied with all the rules and regulations prescribed by such board of school trustees and superintendent for the government of such schools.

And the relator further said, that the public schools of such city were what were known as Graded Schools,” one grade thereof being known as the High School; ” that at the beginning of the school term of such schools, in the fall of 1885, the said Abram Andrew, being sufficiently advanced in his studies, in accordance with the relator’s desire and consent, and in compliance with his legal rights in the premises, was admitted as a pupil in such high school to receive instruction therein, and thereafter until his suspension, as thereinafter stated, was regular in his attendance and deportment, and was obedient and respectful to his teachers, and properly subordinate to the rules and regulations of such school; that among the exercises prescribed by such super- ^ intendent, with the sanction of such board of trustees, for 1 the pupils of the high school, was a requirement that each -of the pupils should, at stated intervals, employ a certain period of time in the study and practice of music, and that they should provide themselves with prescribed books for that purpose; that the relator, believing it was not for the best interest of said Abram Andrew and not in accordance with the relator’s wishes regarding the instruction of his said son, in a respectful manner asked of such superintendent that Abram Andrew might be excused from the study and practice of music at such exercises, and directed Abram Andrew not to participate therein, all in good faith and in a respectful manner, and with no intention of, in any manner, interfering with the government, rules and regulations of such schools, except in so far as ho might legally control and direct the education of his said son, which purpose and desire were fully communicated by him to such superintendent.

But the relator said that, notwithstanding his said desire and request so communicated to such superintendent as aforesaid, the superintendent on or about the 14th day of-October, 1885, in disregard of the relator’s wishes and request, required said Abram Andrew to participate in the practice and study of music, and upon the refusal of said Abram Andrew to participate in such exercises and study, which he did without disrespect to such superintendent and entirely because of the relator’s direction, which was so communicated to such superintendent as aforesaid, the superintendent, suspended said Abram Andrew from such school without assigning any cause therefor other than his refusal to participate in such musical exercises and studies, and, as the relator-averred, without any legal cause or justification whátever;. that such suspension was reported to, and approved by, such board of school trustees, and the said Abram Andrew, in consequence of such suspension, had been thence hitherto and still was debarred from attendance upon such high school,, as a pupil, thereof; that after the promulgation of such order' of suspension, and before the filing of his verified complaint or affidavit' herein, the relator demanded of such board, of school trustees the revocation of such order of suspension,, and that Abram Andrew be readmitted as a pupil of such high school, which demand such board and each member thereof refused to comply with, but admitted that no charges, of misconduct or insubordination existed against Abram Andrew, excepting only his refusal to participate in such musical studies and exercises, in violation of the expressed wishes of the relator; and so the relator said, that his son Abram Andrew was deprived of his right to attend and receive instruction in such high school, without any reasanable or justifiable cause whatever. Wherefore, etc.

An alternative, writ of mandate was issued by the court. The appellees appeared and jointly,demurred to the relator’s verified complaint or affidavit herein, upon the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained by the court. The relator excepted, and, failing to amend, judgment was rendered against him for appellees’ costs.

The sustaining ¡of the demurrer to his verified complaint is assigned here, as error, by appellant’s relator.

We have given a full summary of the facts stated by the relator, in his verified complaint herein,, almost in the language-of the pleader. It will be seen therefrom that the superintendent of the free public schools of the city of Laporte, with the sanction of the trustees of the school city of Laporte, had made a rule or regulation for the government of the pupils of the high school, in the graded schools of such city, requiring, that each of such pupils should, at stated intervals, employ a certain period of time in the study and practice of music, and should provide himself with a prescribed book for that purpose. The relator’s son, Abram Andrew, was one of the pupils of such high school, and at the instigation, and by the direction, of his father, he disobeyed or violated such rule and regulation, and refused to employ any period of time in the study and practice of music, and to provide himself with the prescribed book, or books, for the purpose of the study and practice of music. For his disobedience of such rule or regulation, and his refusal to comply therewith, the pupil, Abram Andrew, was promptly suspended from the high school, and his suspension was approved by the trustees of the school city of Laporte. This action is brought by the father and natural guardian of the suspended pupil to compel, by mandate, the governing authorities of the school corporation to revoke such suspension, and to readmit such pupil to the high school.

The question for our decision in this case, as it seems to us, may be thus stated: Is the fule or regulation, for the government of the pupils of the high school of the school city of Laporte, in relation to the study and practice of music, a valid and reasonable exercise of the discretionary power conferred by law upon the governing authorities of such school corporation ?

In section 4497, E. S. 1881, in force since August 16th, 1869, it is provided as follows: The common schools of the State shall be taught in the English language; and the trustee shall provide to have taught in them orthography, reading, writing, arithmetic, geography, English grammar, physiology, history of the United States, and good behavior, and such other branches of learning and other languages as the advancement of pupils may require and the trustees from time to time direct.”

Under this statutory provision, and others of similar purport and effect, to be found in our school laws, it was competent, we think, for the trustees of the school city of Laporte to enact necessary and reasonable rules for the government of the pupils of its high school, directing what branches of learning such pupils should pursue, and regulating the time to be given to any particular study, and prescribing what book or books should be used therein. Such trustees were and are required, by the° express provisions of section 4444, R. S. 1881, in force since March 6th, 1865, to “take charge •of the feducational affairs ” of such' city of Laporte; “ they may also establish graded schools, or such modifications of them as may be practicable; and provide for admitting into the higher departments of the graded school, from the primary schools of their townships, such pupils as are sufficiently advanced for such admission.”

The power to establish graded schools carries with it, of «course, the power to establish and enforce such reasonable rules as may seem necessary to the trustees in their discretion, for the government and discipline of such schools, and prescribing the course of instruction therein. Confining our opinion strictly to the case in hand, we will consider and ■decide these two questions, in the order of their statement, namely:

1. Has the appellant’s relator shown, by the averments of his verified complaint, that the rule or regulation for the gov■ernment of the pupils of the high school, in the school city of Uaporte, of which he complains, was or is an unreasonable exercise of the discretionary power conferred by law upon the trustees of such school corporation and the superintendent of its .schools ?

2. Conceding or assuming such rule or regulation to be reasonable and valid, has the relator shown, in his complaint herein, any sufficient or satisfactory excuse for the non-compliance therewith, and the disobedience thereof, of his son Abram Andrew, a pupil of such high school, or any sufficient or legal ground for the revocation of the suspension of his son, or for his son’s readmission as a pupil in such high school ?

1. As to the first of these questions, it will be seen4 from the relator’s verified complaint, the substance of which we have heretofore given, that he has not attempted to show, in any manner, that the rule or regulation requiring that each of the pupils of the high school, as one of the exercises prescribed by the superintendent, with the sanction of the trustees, for the pupils of such school, should, at stated intervals, employ a certain period of time in the study and practice of music, and, for that purpose, should provide himself with a prescribed book, was not a reasonable and valid exercise of the discretionary power conferred by. law upon such trustees and superintendent. It can not be doubted, we think, that the Legislature has given the trustees of the public school corporations the discretionary power to direct, from time to time, what branches of learning, in addition to those specified in the statute, shall be taught in the public schools of their respective corporations. Where such trustees may'have established a system of graded schools, or such modifications of them as may be practicable, within their respective corporations, they are clothed by law with the discretionary power to prescribe the course of instruction, in the different grades of their public schools. We are of opinion that the rule or regulation, of which the relator complains in the case under consideration, was within the discretionary power conferred by law upon the governing authorities of the school city of Laporte, that it was not an unreasonable rule, but that it was such an one as each pupil of the high school, in the absence of sufficient excuse, might lawfully be required to obey and comply with.

It will be observed that the relator has stated the requirements of the rule, whereof he complains, with much vagueness and uncertainty. “ Each of the pupils shall, at stated intervals,” etc. What the intervals are, whether oncea week, once a month, or once each term or session-, is’wholly left to conjecture. “ Employ a certain period of time,” etc. Thei*e is no period of time more uncertain in duration, than the time represented by the expression, a certain period of time.” Was it fifteen minutes, one hour, or one day ? The relator has not informed us.

We pass to the consideration of the second question, above stated.

2. The school authorities of the city of Laporte, in the exercise of the discretionary power conferred on them by law, adopted a rule or regulation requiring that each pupil of their high school should, at stated intervals, employ a certain period of time in the study and practice of music and, for that purpose, should provide himself with a prescribed book. .The relator requested the superintendent of the public schools of the city of Laporte to excuse- his son, Abram Andrew, who was one of the pupils of the high school, from the study and practice of music at the musical exercises of such school, and directed his son not to participate in such musical exercises. The superintendent afterwards required the relator’s son, as one of the pupils of the high school, to take part in the musical exercises of the school, and, upon his refusal to obey or comply with such requirement, suspended him from such high school. The only cause or reason assigned by the relator for requiring his son to disobey such rule or regulation was, that he did not believe it was for the best interest of his son to participate in the musical studies and exercises of the high school, and did not wish him to do so. The relator has assigned no cause or reason, and it may be fairly assumed that he had none, in support either of his belief or of his wish. The important question arises, which should govern the public high school of the city of Laporte, as to the branches of learning to be taught and the course of instruction therein, the school trustees of such city, to whom the law has confided the direction of these matters, or the mere arbitrary will of the relator, without cause or reason in its support? We are of opinion that only one answer can or ought to be given to this question; the arbitrary wishes of the relator, in the premises, must yield and be subordinated to the governing authorities of the school city of Laporte, and their reasonable rules and regulations for the government of the pupils of its high school. This is the doctrine of the cases decided by the courts of last resort in ■many of our sister States; and, as applicable to the facts of this case, we think it is the better doctrine. Roberts v. Boston, 5 Cush. 198; Hodgkins v. Rockport, 105 Mass. 475; Ferriter v. Tyler, 48 Vt. 444 (21 Am. R. 133); Sewell v. Board, etc., 29 Ohio St. 89; Donahoe v. Richards, 38 Maine, 379; Gurnsey v. Pitkin, 32 Vt. 224; Kidder v. Chellis, 59 N. H. 473.

Filed Oct. 16, 1886.

On the other hand, it is not to be denied that the decisions ■of the Supreme Courts of Illinois and Wisconsin are in apparent conflict, to some extent at least, with what we here ■decide. Morrow, v. Wood, 35 Wis. 59 (17 Am. R. 471); Rulison v. Post, 79 Ill. 567; Trustees, etc., v. People, 87 Ill. 303 (29 Am. R. 55). There is much in the opinions of those learned courts, which, applied to the cases before them, meets •our approval; but we think that the doctrine of those cases ■can not apply, and ought not to be applied, to the case in hand as stated by the relator, in his verified complaint herein, to which case we limit this opinion.

Eor the reasons given, our conclusion is that no error was committed by the court below in sustaining appellees’ demurrer to the relator’s complaint.

The judgment is affirmed, with costs.  