51 Wash. 498, 99 P. 28 SCHOOL DIST. NO. 20 V. BRYAN (S. Ct.


1909).

      SCHOOL DISTRICT NO. 20, SPOKANE COUNTY, Respondent,
                               vs.
R. B. BRYAN, as State Superintendent of Public Instruction,
                     et al., Appellants

                          No. 7685
                SUPREME COURT OF WASHINGTON
                    
51 Wash. 498, 99 P. 28
                    January 16, 1909, Decided

                              
     Appeal from a judgment of the superior court for Thurston
county, Linn, J., entered February 13, 1908, in favor of the
plaintiff, after a trial before the court without a jury, in an
action to enjoin the apportionment of a portion of the common
           school fund to a state normal school.

SCHOOLS AND SCHOOL DISTRICTS -- COMMON SCHOOLS. A common school,
within Const., art 9, 2, means one that is common to all
children of proper age and capacity, free, and subject to, and
under the control of the qualified voters of the district.
SCHOOLS AND SCHOOL DISTRICTS -- FUNDS -- APPORTIONMENT -- COMMON
SCHOOLS -- STATE NORMAL TRAINING DEPARTMENT. Under the
constitutional and statutory provisions differentiating between
the common school and the normal school, a model training
department of a state normal school wherein a portion of the
school children in a district are given instruction which they
would otherwise receive in the district schools, is not a part of
the common schools of the state, within Const., art. 9, 2,
requiring the common school fund to be applied exclusively to the
support of the common schools; as such a department is not under
the control of the districts or common to all children of proper
age or a part of our uniform system of schools, and its main
purpose is to benefit the normal pupil; hence Laws 1907, p. 180,
4, apportioning part of the common school fund of a district to
the maintenance of such a model training school is void.


John D. Atkinson, Attorney General, and William W. Manier,
Assistant, for appellants.
W. H. Winfree, for respondent.


CHADWICK, J. RUDKIN, C.J., FULLERTON, CROW, and MOUNT, JJ.,
concur. CHADWICK
{*500} In order to make effectual Bal. Code, 2550 (P.C.
7463), the legislature of this state, at its 1907 session, passed
a law (Laws 1907, page 180, chapter 97) providing for a model
training school department to be established in the State Normal
Schools. Its purpose is manifest. It is to provide material for
the particular training of teachers, and to this end the boards
of the several normal schools are authorized, and it is made
their duty, to file, on or before the first Monday in September
in each year, with the board of the school district in which the
normal school is situate, a requisition for the estimated number
of public school pupils necessary to make up a model training
school. It is thereupon made the duty of the local board to
apportion a sufficient number of pupils to meet the requisition.
It is also provided that the principal of the normal school may
refuse to accept such pupils as, in his judgment, by reason of
incorrigibility or mental defects, would tend to reduce the
efficiency of the training department. It is made the duty of the
school clerk to keep a segregated list of those attending the
model school, and further:
"That it shall be the duty of the Superintendent of Public
Instruction to apportion to the support of such normal training
school out of the funds available for the support of the common
schools of the district in which each normal school is situated,
such proportion of the funds to which such school district shall
be entitled as the number of pupils in attendance upon each such
model training school, bears to the {*501} whole number of pupils
upon which the apportionment was made for the common schools in
the school district in which such normal school is situated, and
the funds so apportioned shall be distributed by the board of
trustees for the maintenance of such model training school."
Section 4.
Plaintiff brought an action in the superior court of Thurston
county to restrain the defendant, as superintendent of public
instruction, from apportioning to the model training department
of the state normal school, located at Cheney, Washington, any of
the funds available for the support of the common schools. From
an order directing an injunction, and also holding:
"That so much of chapter 97, Laws 1907, 'Entitled an act relating
to the model training school department of normal schools,
authorized by section 7463 of Pierce's Code, section 2550 of
Ballinger's Annotated Codes and Statutes of Washington, and
providing for apportionment of funds therefor,' approved March
11, 1907, which seeks to apportion or appropriate any part of the
common school fund or revenue therefrom or state tax for the
support of the common schools is unconstitutional and void,"
the defendants have appealed.
The assignments of error, four in number, all go to the question,
does the act provide for a diversion of the common school fund in
contravention of the following constitutional provisions:
"The legislature shall provide for a general and uniform system
of public schools. The public school system shall include common
schools, and such high schools, normal schools, and technical
schools as may hereafter be established. But the entire revenue
derived from the common school fund, and the state tax for common
schools, shall be exclusively applied to the support of the
common schools." Const., art. 9, 2.
". . . The interest accruing on said fund, together with all
rentals and other revenues derived therefrom, and from lands and
other property devoted to the common school fund, shall be
exclusively applied to the current use of the common schools."
Const., art. 9, 3.
{*502} Counsel for appellants have made an elaborate research of
the authorities in order to arrive at a proper definition of the
words "common school," and from them deduced the following: "The
essential characteristics therefore of a common school are, (1)
they must be maintained at public expense; (2) they must provide
a course of elementary education for children of all classes of
people." He concludes that the model training school comes within
this definition, and is therefore a common school within the
meaning of the constitution.
The word "definition" is in itself difficult to define. What
would be proper under a given state of facts may be impossible
under another. A word must be accepted with reference to its
relation to other words and terms. The words "common school"
cannot be arbitrarily defined, but must be considered in
connection with the general scheme of education outlined in the
constitution of the state. When so considered, they have no
uncertain meaning. In adopting a constitution, the people of this
state saw fit to devote a chapter to the subject of education. In
it they were careful to emphasize the importance, as well as the
distinct character, of the common school. They endeavored to
protect and preserve the funds set apart by law for the support
of the common school from invasion, so that they might be applied
exclusively to the current uses of such schools. An ample
provision for the education of children was made paramount, and
the duty was imposed upon the legislature of providing a general
and uniform system of public schools. The system provided
differentiates between the common school and the normal school,
as does not constitution, and when adopted such system has the
force of the constitutional provision which it elaborates. The
system must be uniform in that every child shall have the same
advantages and be subject to the same discipline as every other
child. A system of control through school boards and county
superintendents is provided for, their duties defined, and a
method supplied to secure, in theory at least, {*503} efficient
teachers and instructors. When considered in this way, it would
seem that the definition arrived at by counsel is too narrow. The
words "common school" must measure up to every requirement of the
constitution and code of public instruction, and whenever by any
subterfuge it is sought to qualify or enlarge their meaning
beyond the intent and spirit of the constitution, the attempt
must fail.
The propriety and benefit of the scheme are urged by counsel.
They say:
"Here we have a model training school, which is a portion of a
state normal, which has as principal a person chosen for that
position because of his experience as an educator, who gives
personal supervision to the instruction of a certain number of
the pupils who would otherwise be attending other graded schools
of the district. The principal has under his charge a corps of
teachers who are making a study, a science, of the art of school
teaching. Experience will show the benefits to the pupils
attending this department. The pupils are chosen in some way,
mayhap by lot, or by the directors of the district; mayhap, as
being residents within a certain portion of the district in the
vicinity of the normal school; mayhap, as being pupils in a
certain grade or grades. They are residents of the same district;
they pursue the same studies; in all probability receive better
and more careful instruction than do the others who attend the
other common schools within the district. Why is that not a
common school within the meaning of the men who framed the
constitution? There are no essentials lacking."
With these considerations we can have no concern. But if it were
otherwise, the argument meets itself and furnishes abundant
reason why the act in question cannot be sustained. The principal
of the normal school, however accomplished, is not an officer
recognized by the law creating the common school system, and is
in no way answerable to those who are charged with the duty of
executing it. The teachers under his charge may be devoted in
their pursuit of the art of teaching, but they are not teachers
within the meaning of the law which has undertaken to insure that
public school children {*504} shall be taught only by those who
have met (not those seeking to attain) a certain standard of
proficiency. In other words, the argument of counsel emphasizes
the fact that in its operation the act of 1907 would break the
uniformity of the common school system. To summarize, a common
school, within the meaning of our constitution, is one that is
common to all children of proper age and capacity, free, and
subject to and under the control of the qualified voters of the
school district. The complete control of the schools is a most
important feature, for it carriers with it the right of the
voters, through their chosen agents, to select qualified
teachers, with powers to discharge them if they are incompetent.
Under the system proposed, instead of the voters employing a
teacher with proper vouchers of worthiness, they are made
recruiting officers to meet a draft for material that the
apprentice may be employed.
A normal school has been defined as a school,
"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 the common schools. They are not
open to all, but only to such as may be selected at times and in
a manner to be prescribed by the superintendent of public
instruction. . . . Applicants for admission are required to
possess certain qualifications, which must be tested by
preliminary examinations, and on the completion of their studies
the pupils are to receive diplomas, which shall be evidence of
their qualification to teach in common schools; but they are
under no obligation to become teachers, and there is nothing to
prevent their engaging in other pursuits." Gordon v. Cornes, 47
N.Y. 608.
Nor can the legislature by any contrivance, designation, or
definition, make a common school a normal school, or a normal
school a common school, within the meaning of the constitution.
"To say that the legislature can determine what institutions
shall receive the proceeds of the school fund; and that whatever
they determine to be entitled thereto, becomes ipso facto a
common school, is begging the whole question, and {*505}
annulling the constitutional restriction." People v. Board of
Education, 13 Barb. 400.
Admitting, for the sake of argument, that the act would result in
benefit to the schools as a complete system, the benefit would be
only incidental. The main purpose is to benefit the normal pupil,
and would result in a diversion of the fund from the exclusive
use proposed in the constitution. That the common school and the
normal school are distinct is further made certain by reference
to the enabling act creating this state. The people have spoken
this difference in the constitution, and the legislature has
maintained it in the code of public instruction. To take from the
one and give to the other by indirect methods that which was
designed for a special purpose would defeat the whole scheme of
the law and open a way for the ultimate transposition of funds
held under a most sacred trust. Courts have been zealous in
protecting the money set apart for the maintenance of the free
schools of the country. They have turned a deaf ear to every
enticement and frowned upon every attempt, however subtle, to
evade the constitution. Promised benefit and greater gain have
been alike urged as reasons, but without avail. They have
endeavored to say in unmistakable terms that the common school
fund is just what it purports to be, a fund to be used for the
sole purpose of supporting the graded schools of the commonwealth
under the sanction of fixed and uniform laws. It follows that all
experiments in education must be indulged, if at all, at the
expense of the general fund. An attempt to divert a part of the
common school fund to the education of children in certain
orphanages was met by the supreme court of New York with the
suggestion that, if it were accomplished, the legislature "might
by a simple enactment, convert all our colleges and academies and
all our seminaries into common schools. This cannot be
tolerated." People v. Board, supra. The supreme court of
Virginia, in defining the extent of legislative authority over
these funds, said:
{*506} "We think the constitution has dedicated this fund to the
public free schools of the state, and intrenched behind its
bulwarks, it is beyond the reach of the legislature for any other
purposes whatever." State Female Normal School v. The Auditors,
79 Va. 233.
The supreme court of Kentucky, in several cases, has refused to
countenance any diversion of the moneys set apart for the common
schools, meeting a positive showing of economy to the public
school system with the following:
"The position that the school building is not sufficient in
dimensions to accommodate all the children, and for that reason
the legislature had the power to divide the fund, cannot be
sustained. If not sufficient, those in charge of the common
school should make it so, and to allow the legislative department
of the government to divide the fund in such a mode, when, in the
opinion of those interested, the school buildings were
insufficient, would be subversive of the whole school system. If
a case could exist where such legislative action would be
sanctioned, it is found in the case before us; but, when ample
remedies are afforded by the law regulating common schools to
prevent such results as is now attempted to justify this
character of legislation, there is no reason for establishing a
precedent that must, if followed, destroy the very existence of
common schools." Underwood v. Wood, 93 Ky. 177, 19 S.W. 405, 15
L.R.A. 825.
And the same court, in expressing its unwillingness to conjure an
excuse for such legislation, said:
"If the General Assembly may appropriate the revenues of the
school fund for any purpose which cannot be clearly shown not to
be in aid of common schools in any sense or in any degree, the
whole fund may be dissipated and lost to the children of the
state whenever the legislature so wills it." Collins v.
Henderson, 74 Ky. 74.
Other cases having a direct bearing on the issue are Hall's Free
School Trustees v. Horne, 80 Va. 470; Halbert v. Sparks, 72 Ky.
259.
It is not that the legislature cannot make provision for the
support of a model training school, but in its attempt to do so,
it has made provision for it out of the wrong fund. This {*507}
conclusion makes it unnecessary to discuss the other questions
raised by counsel for respondent as to the sufficiency of the
title of the act.
The judgment of the lower court is affirmed.
                     DISPOSITION
                              
                              Affirmed.
                              
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