
    The Board of Education of Sycamore et al. v. The State, ex rel. Wickham.
    
      Mandamus will lie, when — Not to control discretion, •when — Boards of education may establish rules — Enforced by courts — Rule providing for promotion of pupils — Superintendent may refuse to allow pupil to omit grade — Mandamus will compel promotion, when.
    
    1. Mandamus will lie to compel the performance of an act which is clearly shown to be especially enjoined by law as a duty resulting from an office, trust or station. But it will not lie to control discretion unless it be clearly shown that the refusal by the one occupying the trust or station to perform the desired act is an abuse of discretion. The State, ex rel. Milhoof v. The Board of Education, 76 Ohio St., 297, approved and followed.
    
      2: The statutes of the state relating to education which give the control and management of the public schools to the boards of education of the several districts, authorize such boards to establish rules and regulations for the government of the schools, and, so far as rules so established are reasonable, and fairly calculated to insure good government and promote the ends of education, will be sustained by the courts.
    3. A rule which provides for the proper examination at the end of the school year of pupils jointly by the teacher of the grade in which such pupils have been students and the superintendent of the schools, and for the promotion of pupils to the next higher grade upon the recommendation of such teacher and superintendent, the same being based on merit, is a reasonable rule.
    4. A pupil who has favorably passed examination, and been given a proper certificate authorizing him to enter the next higher grade, is without right, in the absence of authority from- the board of education, to omit such grade to which he has been promoted and passed to a higher one.
    5. Where, by direction of the parent of the pupil thus promoted, the pupil without authority of the boar,d, enters the room of such higher grade for the purpose of remaining there, it is the right and duty of the superintendent to refuse to allow the pupil to remain and direct him to go to the room of the grade to which he has been promoted.
    
      6. In the absence of any showing that application had been made to the board for permission to the pupil to enter such higher grade and in the absence of showing that the board had before it a report of its superintendent recommending the promotion of the pupil to such higher grade, mandamus will not lie to compel the board to order such promotion even though it be shown that the pupil was, at the time of such attempted entry, in fact fitted to enter such grade.
    (No. 11161
    
    Decided March 30, 1909.)
    Error to the Circuit Court of Wyandot county.
    The cause to be here reviewed was tried on appeal at the January Term, 1908, of the Circuit Court of Wyandot, upon pleadings embracing petition (filed in the common pleas September 23, 1907), answer and reply, the action being in mandamus brought by the State, ex rel. W. H. Wickham against the Board of Education of the Sycamore village district, F. J. Remington and Fred Teal, to obtain the issue of a writ of mandamus to compel the Board to promote a son of the relator, one Terry Wickham, to enter the seventh grade of the village schools, and the teachers, Remington and Teal, to receive relator’s son into said grade, and commanding them to give him instruction in the prescribed work of said grade.
    It was averred, among other things, in substance in the petition that the school in the district is what is known as a graded school, consisting of eight grades in which the common branches of study are taught, and high school; that the defendant, Fred Teal is employed by the Board as teacher in the seventh grade; that by the course of study prescribed by the Board it was required that certain studies be pursued and a certain degree of proficiency attained therein by pupils before they take up the work in the next higher grade; that Terry Wickham having made'the necessary proficiency in the preceding grades, and having been examined by Fred Teal, the teacher in the seventh grade, and by Remington, superintendent of the schools, and having been found proficient and well qualified in the work prescribed for the preceding grades, applied for admission into the seventh grade at the beginning of the present school year, and although he was pronounced proficient by his teacher' and superintendent in the preceding work and found qualified for the work of the seventh grade, he was informed that by some pretended rule, emanating from the Board, he was precluded from taking up the work of the seventh grade and the teacher was not allowed to give him instruction in said work. Relator does not know the exact nature of the pretended rule, but this boy, although qualified, was refused admittance into said grade and in effect expelled from it. The said rule of the Board which denies the right of relator to have his child receive instruction in the proper grade is unreasonable and beyond the authority of the Board, is unlawful and an abuse of the discretionary powers of the Board, and, as a citizen of such district and a taxpayer therein, relator has a right to have his son receive instruction in the seventh grade, which right is unlawfully withheld from him by the Board. Then follows the prayer as before referred to.
    The answer, admitting certain of the averments of the petition not necessary to be here repeated, denied others, and alleged the age of the boy to be eight years, and as a second defense averred that, prior to the year 1903 the Board,, pursuant to the statutes of the. state, made and published rules and regulations for the government .of its appointees and the pupils, setting out in the answer in extenso said rules, among which rules were the following, given here in substance:
    The schools of the village to consist of four departments, the first primary to include the first, second and third years; the second primary the fourth, fifth and sixth years; the grammar school the seventh and eighth years; the high school the freshman, sophomore, junior and senior years. The school year to open on the first Monday of September unless otherwise ordered and continue thirty-four weeks. The course of study for the several grades as provided: That of the fifth grade as follows:
    “Reading — Fifth Reader. Arithmetic — Part III. and supplementary work. • Writing — Copybooks 4 and 5. Drawing — Book No. 4, Spelling — To.lesson 50, Part II. Written exercises continued. Language — Part III. and supplementary exercises. Geography — Elementary, completed and reviewed. Physiology- — -The Flouse I Live In.”
    That of the sixth grade as follows:
    “Reading- — -Sixth Reader six months. . Seventh Reader two and one-half months. Arithmetic— Modern Practical to Common Fractions. Writing —Copybooks 5 and 6. Drawing — Book No. 5. Spelling — -To lesson 150. Written exercises. Language — Elements of Grammar and Composition Part I. Geography — Natural Advances, through United States. Physiology — The House I Live In, completed.”
    That of the seventh grade as follows:
    “Reading — Seventh Reader, four months. History — Eggleston’s First Book, four and one-half months. Arithmetic — To Compound Interest. Writing — Copybooks 6 and 7. Spelling — Book completed. Written exercises using Spelling Blanks. Language — Parts II. and III. Geography — Completed from United States. Physiology —Overton’s Intermediate.”
    That among the rules so provided for the promotion of pupils from one grade to the next higher or succeeding grade were the following:
    “Promotions shall be made on the basis of fitness only and not on account of the size or age of the pupil, or the wishes of the parents. Due credit will be given, however, to the diligence, punctuality, habits of study and general conduct of the pupil. Pupils will be promoted at the close of the school 3^ear, if they have obtained an average of 75 per cent, with not less than 60 per cent, in any branch. Pupils, whose general average is fair, but who have fallen below 60 per cent, in any one branch, may be promoted conditionally and given an opportunity to make up the deficienc3c No pupil shall be promoted during the year except upon the approval of the Board and with the recommendation of the teacher and superintendent.”
    As to pupils the following:
    “1. Pupils, between the ages of six and twenty-one years, residing in the district, are entitled to attend the schools, receive like instruction and be promoted from grade to grade on the grounds of merit and proficiency only. * * * 2. Pupils are required to be regular and punctual in attendance, to be diligent in their studies, to conform to the rules and regulations of the school, to obey the directions of the teachers and superintendent, to be respectful and courteous at all times to teachers and kind and obliging- to schoolmates.”
    As to superintendent the following:
    “1. The superintendent shall act under the advice and direction of the Board of Education and shall have and exercise complete supervision over the public schools, and he shall see that all the rules and regulations of the Board of Education are enforced. * * * 4. He. shall direct as to the classification, examination and promotion of all pupils.”
    Also, as to the examination of pupils the following:
    “Pupils shall be examined at such times and in such manner as the superintendent may direct. Ordinarily, there will be three regular examinations each year; but there shall be given, in all grades above the third, at least one written review lesson or test in each branch eveiy month. From these written tests .no one will be excused. Any pupil, who.is absent from the regular examination, shall not be permitted to go on with his class until he shall have given a satisfactory excuse for his absence and passed a satisfactory special examination. For all such examinations or tests a uniform style of paper shall be used. Such manuscripts, as the teacher may see fit to retain, shall be kept on file where they may be referred to and examined by any who may desire. The teacher shall make and record a careful estimate of the work of each of their pupils in every branch of study pursued. The standing of each pupil shall be determined from the daily recitations, reviews, tests and examinations, in such manner as the superintendent may direct.”
    All of which rules were well known to relator and to his son Terry at and prior to the commencement of the action.
    The school term for the year 1906 commenced the first Monday of September and continued thirty-four weeks, closing May 16, 1907, during all of which time Terry was a pupil in the fifth grade; at the conclusion of the term he, together with all other pupils in that grade, as provided by the rules, was duly examined by the teacher of that grade and the superintendent for promotion to the sixth grade, which teacher and superintendent had the sole authority to examine said pupils for presentation to the sixth grade, but had no authority to examine for promotion of said pupils to the seventh grade. The said Terry duly passed the examination and was promoted to the sixth grade authorizing him to enter that grade as a pupil at the opening of the school in September following, and a certificate issued to him as follows:
    “The Sycamore Public Schools. Terry Wick-ham, for proficiency in study, is promoted to the sixth grade. (Signed) F. J. Remington, Supt., May Gibbs, Teacher. May 22, 1907.”
    ' This card of promotion was received, accepted and retained by the son with the consent of relator. At the opening of the schools in September, 1907, the son without the knowledge or consent of the Board or superintendent, wrongfully and in violation of rule, went into the seventh grade of the school in. a different room from that of the sixth, and undertook to take lessons in said seventh grade; that after remaining there, without the knowledge or consent of the Board, until Friday morning of that week, the superintendent informed him that he had not been promoted to the seventh gra.de but had been promoted to the sixth, and requested him to enter the sixth grade. The pupil immediately left the school and did not return, and shortly thereafter this suit was commenced by the father, and the Board had no knowledge of what had transpired as above set forth until after the service of the writ herein.
    The reply admitted that the Board published the manual as alleged, and relator had some knowledge of what it contained, but denied that his son or the superintendent or teachers well knew the same; admitted that what is alleged in the answer as to the organization, the school year, fifth grade, sixth grade, seventh grade and promotion is all found in the manual; also that in the school year commencing oil the first Monday in September, 1906, the son was a pupil in the fifth grade and received his certificate of promotion set out in the answer, and that he kept the card with the consent of the relator; also that at the opening of the school on the first Monday in September, 1907, he went into the seventh grade in a room different from the sixth, and remained there until Friday when expelled as in the petition alleged, and denies all other allegations of the second defense. Then, as new matter, it is alleged that during the summer vacation the son was under the tutorship of a competent instructor and completed all the work prescribed for the sixth grade and nearly all of that for the seventh, and his fitness for entering the seventh grade is all and more than is called for by any proper regulation of the school.
    Before filing answer by the Board a motion to make the petition more definite and certain was overruled;. Answer being filed a general demurrer to the second defense was then interposed and sustained. A demurrer to the reply was also sustained.
    The cause was tried in the circuit court and submitted January 8, 1908, and taken under advisement. The court then ordered that Mr. R. J. Kiefer, superintendent of schools at Upper San-dusky, examine the pupil as to his fitness at that time to enter the seventh grade. On February 14, following, the report of the examiner holding the pupil then qualified for doing the work of the seventh grade having been filed, and the examiner having explained and re-'enforced his report and conclusion by oral testimony in open court, the court found the issues for the relator and that he was entitled to a peremptory writ, and rendered judgment accordingly commanding the Board forthwith to admit the pupil to the seventh grade of the school and ordering the school district to pay the costs including a fee of twenty dollars allowed Mr. Kiefer for his services rendered.
    The defendants below bring error. Facts are stated in the opinion.
    
      Mr, H. H. Newell and Messrs. Finley & Gallin ger, for plaintiffs in error.
    There is no averment that the board failed to do any act specially enjoined upon by law to do, for mandamus can be legally employed only where there is a non-performance of an act which the law specially enjoins to be performed as a duty resulting from an office, trust or station. Selby v. State, 63 Ohio St., 541; State, ex rel., v. Col'eman, 64 Ohio St., 377; State v. Smith, 71 Ohio St., 13; Section 6741, Revised Statutes.
    
      Courts cannot by mandamus control the discretionary powers- of a board of education. Board of Education v. Minor, 23 Ohio St., 211; State, ex rel., v. Board of Education, 76 Ohio St., 297.
    
    This proposition is clear. The legislature has given the absolute control and management of the public schools to the board of education of each district. This is exemplified by Sections 3985, 3986, 4009, 4017, 4020-14 and 4022, Revised Statutes-.
    
      Mr. A. Wickham and Messrs. Carter & Goodrich, for defendant in error.
    Mandamus is the proper remedy to compel the board to perform its legal duty towards a parent and his child on the relator making it to appear that said board has failed and refused to perform its duty. State, ex rel., v. Board of Education, 35 Ohio St., 368; Weifv. Day, 35 Ohio St., 143; State, ex rel., v. Penter, 96 Mo. App., 416; Board of Education v. Felder, 116 Ga., 788; Trustees of Schools v. People, ex rel., 87 111., 303, 29 Am. Rep., 55.
   Spear, J.

There was considerable conflict of testimony as to a number of minor matters concerning which the parties were at issue. It was shown that the *boy was instructed during the summer vacation of 1907 by his parents, both of whom had been teachers, with the purpose of fitting him for admission to the seventh grade, and at one time, Remington, the superintendent, was called into his office by the relator and requested to put questions to the boy which he did. At the conclusion of the talk, as testified by the relator, he spoke of that being the work of the seventh year and they were practically over it, and the superintendent said the boy ought to go there and it would be easy for him. This expression of opinion is denied on the stand by Remington, who adds that he was in the office not more than four or five minutes and did not go in for the purpose of making an examination.

The relator, although he disclaimed in his petition knowledge of the Board’s rules, on the stand admitted that he had once been a member of the Board of Education and was somewhat familiar with the current rules. He had easy access to them.

The boy was examined to some extent with other pupils by Remington the day before he left the seventh grade room, and there is sharp conflict as to the extent of that examination and as to what the superintendent said to the boy and to the teacher Teal as to the boy’s proficiency, the boy putting it that Remington said the work would be easy for him in the seventh grade and the superintendent denying it and giving his opinion that the boy was not qualified for that grade, which opinion he reported to the Board at its meeting Thursday evening. To some extent Teal corroborates the statements of the boy respecting Remington’s expression of opinion. It is not shown, however, that Teal examined the boy at all except that he heard some or all of the lessons during the four days he was in the seventh grade room.

There is no conflict respecting the proposition that the boy went to the seventh grade room by the direction of his father and without any authority to go there by the Board or knowledge on the part of the Board, or of the superintendent prior to his seeing the boy in that room. The appearance of the boy in the room of the seventh grade with his books cannot reasonably be treated as an application for promotion to that grade since such an application should be made to the Board when in session, and the evidence furnishes no support for the allegation of the petition that the boy applied for admission to the seventh grade. No request was made to either the Board or superintendent, the boy testifies, for leave to go into that room. He also says that when Mr. Remington found him there Friday morning he directed him to go into the sixth grade, but that, in obedience to his father’s direction, he took his. books and went home. The superintendent testifies that he did not expel any from the seventh grade room, and there is nothing in the testimony which warrants the conclusion that the boy was expelled from the seventh grade room as alleged in the petition except in the sense that he was directed to go to the sixth grade room to which he had been promoted.

The testimony also shows that when in the fifth grade the boy was seven years of age although the age of scholars generally was from ten to twelve, averaging eleven years. The teacher in the fifth grade, Miss Gibbs, testifies that her examination of the boy at the end of’ the spring term of 1907 showed that his work was exceedingly good in some branches and in other branches not quite so good. She spoke to him concerning his writing and as tO' mathematics, in which his work was not as high as that of quite a number of the class who were promoted to the sixth grade, and advised that he had best do some work at home to perfect himself in those branches; none were promoted from the fifth grade to the seventh that year; it had been done in former years but only by direction of the Board and the superintendent. In her judgment the boy was. not then qualified to enter the seventh grade; she had no personal knowledge of his proficiency after that.

It appears that the superintendent reported to the Board at its meeting Thursday evening (a meeting which he had expected would be held Tuesday evening) that he had made a test of three children, including Terry, and that they were not qualified to enter the seventh grade. The Board took no action and gave no authority in any way for the boy to be promoted to the seventh grade.

Testimony was given by two or three persons who then were or had been teachers, besides Mr. Kiefer, to the effect that they had examined the boy shortly after he left the school and found him, in their judgment, qualified to enter the seventh grade.

These references to the evidence are made not with a view of reviewing all of it, nor for the purpose of attempting to weigh those parts which are in conflict, but for the purpose only of indicating the character of the case presented. It suffices, as conclusion, to say that the trial court’s judgment imports a finding that, upon the whole evidence, the boy was qualified to enter the seventh grade both at the time he attempted to enter and at the time of the trial.

It appears affirmatively and there is no conflict in respect to' it that no request was made of the Board, either by the relator or the son, for the latter’s promotion to the seventh grade, and each knew that his promotion card entitled him to enter only the sixth grade; also that at least the father knew that the rules gave authority for promotion to pass over the sixth grade to the Board and to the Board only. It is also shown without denial that the Board did not have pres'ented to it at any time a recommendation from the superintendent, or even from a teacher, to the effect that the pupil was qualified for entrance to the seventh grade, but on the contrary, as herein-before stated, did have before it the expressed opinion of the superintendent that he was not so qualified.

It is manifest from the whole record that the circuit court acted upon the belief that the question whether or no the pupil was fitted to enter the seventh grade, and should have been promoted from the fifth to the seventh, was rightfully to be determined by the court rather than- by the school authorities. But is this the law ?

Section 4017, Revised Statutes, provides that the board shall have the management and control of all the public schools in the district. Section 3985 makes provision for the adoption of rules and regulations as follows: “The board of education of each district shall make such rules and regulations as it may deem necessary for its government and the government of its appointees and the pupils of the schools; and no meeting of a board of education not provided for by its rules or by-laws shall be legal unless all the members thereof have been notified as provided for in section thirty-nine hundred and seventy-eight.”

Following this authority the Board had'made and promulgated rules and regulations as hereinbefore given. These rules seem to well cover the case in hand and to be appropriate to the .objects intended. To us they appear reasonable, and quite well calculated to secure, in their application to the great body of pupils, a good school government, with as liberal treatment to the individual pupil as proper discipline will permit. The right of the pupil between the ages of six and twenty-one years, residing in the district, to attend the'schools, receive like instruction with others, and be promoted from grade to grade on the grounds of merit and proficiency only, is provided for, the pupils on their part to conform to the rules and regulations of the school and obey the directions of the teachers and superintendent. The superintendent is to act under the advice and direction of the Board; have complete supervision of the school, and see that all the rules and regulations of the Board are enforced. He is also to direct as to the classification and examination, and, under the advice of the Board, to the promotion of pupils. Abundant examinations are provided for, the manuscript to be kept on file for inspection of any who desire, and the standing of each pupil to be determined from the daily recitations, reviews, tests and examinations in such manner as the superintendent may direct. ^

The complaint in the present case is that the application of some of these rules to this pupil worked an injustice, in that it denied him the right secured by Section 4013, Revised Statutes, to freely enter the school of the district, and thereby deprived him of a right of promotion which because of his advanced proficiency he was entitled to enjoy, viz: to be promoted from the fifth to the seventh grade on the ground of merit. But who is empowered to judge of the merit and the proficiency? Is it the father of the child or the school authorities? The trial court seems to have assumed that, in the first instance, it is the father, and finally the court. If the father in the first instance had not the right to determine the matter and direct his boy to refuse to go to the sixth grade room to which the school authorities had promoted him, but go to the seventh grade room and insist on remaining there, it is difficult to see how the court could have any power to interfere when asked to deal with a situation in which the parent undertook to do as in this case, viz: override the school authorities in the management of the school. It is insisted in argument with great force and eloquence that the evidence conclusively shows that the boy was abundantly qualified to enter the seventh grade. The court, giving effect to all the evidence presented, so found and we are not inclined to question that finding except to say that it was irrelevant to the real issue in the case. But the question is not what in fact were the qualifications of the boy, but what was the duty of the Board on that Thursday evening when the situation as to the three pupils was called to its attention. The boy may have been qualified. Indeed it appears from the whole case that the pupil was mentally a precocious boy. Whether it was best for the boy that he be thus crowded we need not inquire, though that consideration is sought to be impressed upon us, pro and con. People, including educators, differ respecting the comparative harm likely to come to a child by untoward cramming and crowding on one hand, or, on the other hand, being kept back in his studies, with the probable resulting opportunity to acquire a habit of idling and wasting time, and probably will continue to differ to the end of time. As yet no better solution of the problem seems to have been made than to leave its determination to the parents, who presumably have more than any others the good of the child at heart. But though this conclusion be accepted it would not justify the claim on the part of the parent to insist upon his way in the face of contrary opinion and decision on the part of the school authorities.

In the light of the facts as they appear, what duty devolved on the Board at the commencement of the proceeding in mandamus which it had refused to perform? We are unable to perceive any. It is to be emphasized that no application had been made to the Board requesting it to set ^iside the proper action of the superintendent and the teacher of the fifth grade as to the promotion of the relator’s son, and direct an order of promotion to the seventh grade. It had before it, at the only meeting which the record shows was held at which its attention was at all called to this boy, the information that he had gone to the seventh grade room without authority, and the opinion and recommendation of its superintendent that the pupil was not qualified for entry to that grade. No abuse of discretion is apparent in its refusal to act. Indeed, the refusal was the natural and proper result of the facts as they then appeared to the Board.

We are of opinion that the initial error occurred in the common pleas in overruling defendant’s motion to make the petition more definite, and later in sustaining the demurrer of relator to the second defense of the answer. It is not, however, necessary to elaborate this feature since the case is susceptible of final disposition on the merits as made on the uncontradicted evidence. Substantially all of the testimony offered by relator was objected to and proper exception saved. By the testimony of the relator and his son it was made clear that the pupil was sent to the room of the seventh grade by his father and without permission of the school authorities. In other words, it was shown that he was an intruder. The willingness if it existed at any time, of the superintendent that the boy should go to that room could not avail as the rule respecting promotions provided that they are to be made only, as conditions precedent, on the approval of the Board based upon the recommendation of the teacher and superintendent. The.testimony showed that neither condition obtained. The superintendent was a subordinate of the Board, and any action on his part in regard to promotion, as well as other matters, was required to be “under the advice and direction of the Board.” The duty, therefore, to “see that all the rules and regulations of the Board are enforced,” required him, without reference to any expression of individual opinion that he may have given as to the boy’s proficiency, to direct the boy to go to the room of the grade to which he had been promoted. So soon as this condition was shown it became the duty of the court to arrest the evidence and dismiss the relator’s petition. It should be borne in mind, as an obvious and controlling fact, that the statutes impose the duty of the regulation and conduct of all public schools upon the Boards of Education and not upon the courts, and interference by the courts with the discharge of those duties should not be lightly entered upon. If every little neighborhood dispute which develops a difference of opinion with respect to the promotion of a pupil, or some other controversy between parent and teacher of no greater seriousness, is to be rushed into the courts, the natural effect will be to unduly crowd the dockets and to impede the important and useful litigation necessarily demanding the attention of the courts. It is insisted by relator’s counsel that the Board of Education was composed of uneducated men and hence was not qualified to judge of the merits of the pupil for promotion. We can not know about that. It is enough to know that the statutes impose the duty on such boards, they having the aid af-’ forded by the teachers and superintendent, and if in any instance they are hot qualified for the performance of such duty it would become the voters of the district to elect men who would be qualified.

These conclusions require the reversal of the judgment of the circuit court and the dismissal of the petition at the costs of the relator, which judgment will be accordingly entered.

Reversed.

'Crew, C. J., Summers, Davis, Shauci-c and Price, JJ., concur.  