
    People ex rel. Mary B. Hill, App’lts, v. Howard B. Crissy, Resp’t.
    
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June, 1887).
    
    Schools—Cornell University—Free scholarship—Who entitled to— Laws 1865, chap. 585, § 9, as amended by laws 1872, chap. 654.
    A normal school is not a public school within the meaning of the statute providing for the selection of the best scholar “from each academy and each public school ” in the respective counties and cities of this state, as a candidate for a free scholarship at Cornell university.
    Appeal from an order of the Erie special term denying a motion for a mandamus.
    
    
      N. H. Hill, for app’lt; I. 8. Lambert, for resp’t.
    
      
       See People ex rel. Hill v. Wicks, 1 N. Y. State R., 604.
    
   Smith, P. J.

Section 9 of the act establishing Cornell university (Laws 1865, chapter 585), as amended (Laws 1872, chapter 654, Laws 1886, chapter 614), provided for the admission to said university, for free instruction, of one student from each assembly district, annually to be selected as therein provided. By the terms of the section, as amended by the acts referred to, the power of selection was vested in the school commissioner or commissioners of each county and the board of education in each city, and in performing the duty they were required to select ‘ the best scholar from each academy and each public school of their respective counties or cities as candidate for the university scholarship. ” They were then to examine the persons so selected and determine which of them were “the best scholars,” and to certify the two highest candidates, the first of whom should be admitted to the university as provided in the act, and so many of the second as the trustees of the university, m their discretion, should admit, not exceeding the full number for the class of each year.

It appears from the appeal papers that in the year 1866, the school commissioners of the county of Chautauqua made no selection of candidates for examination, but, instead of doing so, gave notice by publication in certain newspapers in the county, that at a time and place therein specified, they would examine such persons as should attend for that purpose, and determine to whom the scholarship for that year should be awarded. The county of Chautauqua is divided into two assembly districts, and is entitled to two scholarships each year, under said statute. An examination was held pursuant to such notice, and six persons appeared as candidates and were examined. Among them were Herman L. Gifford, who was determined to be the best scholar, Howard B. Crissey, one of the defendants, the second, and the relator, Mary B. Hill, the third. The relator contends, among other things, that said Howard B. Crissey was not eligible to such scholarship, by reason of the fact that he was a student in the state normal and training school at Fredonia, and not of any other school or academy, and that such normal school is not one of the “public” schools of the county within the meaning of the acts referred to. That contention presents the only question which we propose to consider

We are inclined to the opinion that by the words public schools,” the legislature intended “common” schools, only, and that “normal” schools were not included. It is true that, in an enlarged sense, normal schools are public schools, inasmuch as any citizen of the state possessing the requisite qualifications, and being selected as provided by law, may be admitted to them. In the same sense colleges are public schools, but clearly they are not embraced in the act. The object of normal schools is to give instrucsion in the art of teaching. The distinctions between them and the common schools are marked. They have been defined by the court of appeals, as follows: “These normal schools differ materially from the common schools to which the constitution refers. They are not intended for the education of the children of the inhabitants of the districts where they are located, but for the training of teachers for all common schools. They areznot open to all, but only to such as may be selected at times, and in the manner prescribed by the superintendent of public instruction. Each part of the state is entitled to its due representation. Applicants for admission are required to possess certain qualifications, which must be tested by preliminary examination.” Gordon v. Cornes, 47 N. Y., 616.

Normal schools were in existence in this state when the act of 1865 was passed, the first having been established in 1844. Laws 1844, chap. 311. It is to be presumed that if they had intended by the act, they would have been named. That the legislature regarded tlie term, “public schools,” as not embracing academies, is evident from the fact that academies were specially mentioned. What reason is there for supposing that the term was intended to embrace normal schools, and not academies?

A practical construction has been given to the act of 1865 that favors the relator’s contention. In December, 1867, the superintendent of public instruction issued a circular to the general school commissioners and supervisors in the state, calling their attention to the act, and urging them to make efforts to fill the scholarships created by it. In the circular he stated that the candidates were to be selected from all the academies and “common” schools of the state. He evidently regarded the term “public schools” used in the act as synonymous with “common schools.” Code of Public Instruction, 1868, p. 490. In 1869, the regents of the university made a report to the legislature upon a subject specially referred to them, in which they used the terms “public schools’’and “common schools” indiscriminately. Historical Record of University of New York, 1885, p. 71.

In numerous reported decisions of the court, the terms referred to are used as synonymous. Instances of such use are found in Dallas v Fosdick (40 How., 249), and in the recent case of People ex rel. King v. Gallagher (93 N. Y., 438), not to cite others. The latter case arose under Laws 1850, chapter 143, in which act the like use of the terms m question, is made by the legislature. It is entitled an act to ‘ ‘ reorganize and regulate the common schools, and the board of education in the city of Brooklyn,” and its second section provides, that “the board of education shall have the entire charge and direction of all the public schools of said city, * * . * and shall possess the powers and be subject to the general duties of trustees of common schools in this state.” And in other instances, the act uses the terms referred to indiscriminately.

One object of the act of 1865, in providing for free scholarships in Cornell, was to furnish an incentive to pupils in the academies and public schools to strive for as high a degree of scholarship as those schools could afford. But that incentive would be greatly lessened if they were subjected to competition with students enjoying the more favorable opportunities and the higher grade of instruction furnished by the normal schools.

It can hardly be supposed that such competition was intended by the authors of the act. The force of this consideration is not impaired by the fact that there have been, and still are, teachers’ classes in the academies, the members of which are possibly eligible as candidates for the Cornell free scholarships, within the letter of the act. Whether the students of that class were intended to be made eligible may be questionable, but, even if they were, it does not follow that students in the normal schools were intended to be included. The normal schools were established because the need was felt of a higher grade of instruction and better opportunities for learning the art of teaching than were or could be furnished to teachers’ classes in the academies.

But the question seems to have been put at rest by the action of the legislature at its late session. Chapter 291 of the Laws of 1887 further amends section 9 of the act of 1865,. and it shows very clearly that by the words “public schools” used in the act, the “common” schools, and those only, were intended. After providing, in the language of the original act, that the free instruction provided for shall be accorded to the students selected, “in consideration of their superior ability and as a reward for superior scholarship in' the academies and public schools of the state,” if goes on to enact that “none but pupils of at least sixteen years of age, and of six months’ standing in the common schools or academies of the state, during the year immediately preceding the examination, shall be eligible.” This not only prescribes a clear rule for the future but it seems to be an express legislative definition of the term " public schools ” as used in the original act and its several amendments.

If these views are correct, it follows that the defendant Orissy was not eligible, and that the relator was entitled to the second certificate.

The order appealed from should be reversed, and the motion for a mandamus granted, but without costs of the appeal, as the question is new, and one of public interest, and the commissioners appear to have acted in good faith.

Haight and Bradley, JJ., concur.  