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tracts for a six months school, and a portion of the time is lost
by reason of suspension, by act of the directors, on account of
the prevalence of a contagious disease, or by the accidental de-
struction of the school house, etc., the teacher is entitled to pay
for the whole time according to the terms of his contract; pro-
vided, that he holds himself in readiness dm'ing the period of
such suspension to resume his duties as teacher and fulfil his part
of the contract. So, also, when scholars fail to attend on account
of inclemency of weather, or when the school is suspended for
lack of fuel, or while repairs are being made, etc. — the teacher
cannot be required to lose the time. Parties to a contract are
bound by the terms of their agreement, unless fraud is shown.
(24 /^^., 687.)

14. School Month and Day. — The lunar month, of four
weeks, is to be considered the true common school month in this
state. At least twenty days shall be taught for a month ; sixty
days for three months; one hundred and twenty days for six
months, etc. Directors may contract with teachers on the calen-
dar instead of the lunar month principle, and such contracts,
previously made, shall be valid and binding upon both parties ;
but less than twenty teaching d"ays shall not be considered a
lawful school month. In the absence of any special agreement
or contract between directors and teacher, as above, the lunar
month of twenty teaching days, of six hours each, shall be
adopted as the true basis of settlement, and shall be accepted,
held, and construed by directors, trustees, treasurers, and others,
as satisfying the demands of the law. The foregoing ruling ■
will govern in the- absence of different stipulations between the
teacher and directors. This is in accordance with the general
custom in nearly all other free school states, and in this state
from its earliest history. Though not established by statute, yet
the lunar month, in schools and school engagements, has been
generally allowed by the courts, in the absence of express calendar
month contracts, on the ground of the common and almost im-
memorial usage and custom of the country in school matters.


15. Corporal Punishment. — The law is silent on the subject
of corporal punishment in schools. It neither directly grants nor
withholds authority to inflict it. The whole subject is left to the
judgment and discretion of the local school authorities, and
to the sanction of general usage and custom. That the teacher
must be clothed with authority to use the rod in certain cases,
is self-evident. It grows out of the very nature of the case, and
of his relations to his pupils. The prudent exercise of such
authority is acquiesced in by the opinions and practice of the
whole country, and is almost invariably sustained by the courts ;
on the ground, not of statutory enactments, but of common
custom, common sense, common justice, and the nature and
necessity of the case. It is only the flagrant abuse of the ad-
mitted right, which either society or the law is disposed to
frown upon and condemn, ISTo teacher is liable for inflicting cor-
poral punishment upon a pupil, unless he goes beyond the limit
of reasonable castigation; or is guilty either in the mode or de-
gree of correction, of unreasonable or disproportionate violence
or force, which can only be determined by the circumstances of
each particular case. 1 Blachstone, 453. 2 Kent. Com.^ 205. 2
Dev. and Battle, 365. 27 Maine, 266, 280. 4 Gray, 36.
3 Greenl. on Ev., § 63, etc., etc.

16. Entitled to Interest. — By section 54, the salaries of
teachers are made payable on the first Mondays of April and
October, and on all balances due and unpaid on those days re-
spectively, teachers are expressly entitled to interest at the rate
of ten per cent, per annum, from due and until paid. But if
there is an unpaid balance on the first Monday of any April or
October, the teacher cannot demand interest on said balance for
the full period of six months, if payment is tendered sooner. If
a tender is made and refused, further interest is barred. Balan-
ces, with accrued interest, may be paid at any time by the treas-
urer, when he has funds for the purpose.

17. Substitutes. — Directors, only, have power to employ
teachers of public schools. Hence, if a teacher is taken sick, or
obtains leave of absence, he cannot employ a substitute — it must
be done by the board of directors. And the teacher so employed,
for however short a time, must have and exhibit a certificate of
qualification, make a schedule, and comply with all other require-
ments of the law, or the public funds cannot be used in payment


of the temporary services so rendered. One teacher cannot re-
ceive wages on the certificate or schedule of another, or in the
name of another teacher.

18. Holidays. — It is customary and commendable to dismiss
public schools during the holidays. The usual holidays are the
Fourth of July ; from Christmas to ISTew Year's day, both in-
clusive; and all thanksgiving and fast days appointed by national
or state authorities. Directors may rightfully authorize their
schools to be dismissed on the above named holidays, and, when
so dismissed, the teacher can not be required to lose the time.


1. Who are Eligible. — Only those persons who are between
the ages of six and twenty one years, and hona fide residents of
a school district, have a legal right to attend the free schools in
said district. Such persons cannot be excluded, nor can they be
charged any tuition fee. Other persons may be admitted con-
ditionally, but only those above mentioned can demand free
admission as their absolute legal right. Children under six are
excluded. Children of other districts, and persons over twent}''-
one years of age may be admitted, but only upon such terms and
conditions as the law, and the directors, in the exercise of the
discretion vested in them, may prescribe. The distinction be-
tween those who have a legal claim to be admitted free, and all
others, must be kept distinctly in view. Under no circumstances
can any of the latter class be received to the exclusion of any of
the former; nor can pupils over twenty-one years of age in any
case have the benefit of the public school fund. Such persons
may be admitted when consistent with the rights of the legal
school children of the district, as aforesaid, either with or without
a tuition fee, at the option of the directors. Should directors,
without authority of law, first admit children under age, and
afterwards conclude to exclude them, they cannot compel the
parents or guardians to pay tuition for the illegal attendance
which they had tolerated.

2. Residence. — As a general rule, the residence of parents is
the residence of their children. Boarding children in a district


does not, of itself, entitle them to the benefits of the free school
in said district. The mere tetrhporary residence of a family in a
district, solely to enjoy the benefits of the free schools, and with
the intention of removal as soon as that purpose is accomplished,
does not entitle the children to the privileges of said schools.
The removal of a portion of a family from the legal domicil to
another district, in order to send to the free schools thereof, does
not confer the right to do so. As a general rule, the residence of
their parents is the residence of employees ; hence the privilege of
the free school in another district is not acquired by placing chil-
dren temporarily at service in that district. This includes those
who are placed in families to attend school and do chore-work
for their board, etc. The most liberal policy is, however, recom-
mended towards this class of children. The state has as much
interest in their education as in that of the more favored ; and,
although not legally eligible to attend free, the directors should
permit them to do so, when not inconsistent with the rights of
others and the welfare of the school. Children who have been
apprenticed, or adopted into a new family ; or who have been
placed permanently in the care of others, with no intention of
withdrawal ; or those over whom parents have relinquished all
control from whatever cause; or those who have no parents or
guardians, or whose parents or guardians live in another state or
country, and exercise no control over their children ; or those
who have no permanent abode, but go from place to place in
search of employment, and whose only home is where they find
work ; — the children included in all the above classes are to be
enumerated in the district where they live, and are entitled to all
the rights and benefits of the free schools in said district. ( 8
Wend.^ 140. 23 Pick., 178. Storifs Conflict of Laws, chap. 3,)
3. Exclusion from School in Certain Cases. — When the moral
depravity of a child becomes so great that his example is dan-
gerous to the purity of the school, or when his insubordination
is so bold and incorrigible as to be fatal to the discipline of the
school, duty to the other scholars demands his removal. He has
no longer any right to remain, for no rights can attach to the
individual, the exercise of which is incompatible with the equal
rights of others. This principle has important applications. It
justifies and requires the removal of a pupil from school, in cer-
tain cases, even when no ofi'ense has been committed. It teaches


clearly, that punisliment for evil doing is not the only ground
upon whicli dismissal from school can be justified ; that protec-
tion from evils which, though serious, imply no wrong in the
parties concerned, is sometimes an equally valid ground for the
temporary removal of a pupil from school. Directors may and
should exclude from school, for the time being, pupils infected
with offensive or contagious diseases. ISTot for any fault or
wrong on their part, but simply because their presence under the
circumstances is incompatible with the safety and comfort of
others. Their personal rights in the common school are for the
time in abeyance — they must be surrendered till they can again
be exercised without infringing the equal rights of others. The
right to enjoy the benefit of common schools, established for all
the inhabitants, is a common, not an exclusive personal right,
and hence, like all other common rights, it must be exercised
under such limitations and restrictions, that it shall not interfere
with the equal and co-extensive rights of others. Children may,
therefore, be excluded, not merely for punishment, but for the
protection of others from such noxious example and pestilent
influence as would entirely defeat the purposes for which schools
are instituted. (8 Cush. Mass. B., 164.)

4. night of Choice in /Studies. — Pupils can study no branch
which is not in the course prescribed by the directors. Pupils
can study no branch of such prescribed course for which they
are not prepared; of which preparation the teachers and direct-
ors shall judge. Pupils shall study the particular branches of
the prescribed course which the teachers, with the consent of the
directors, shall direct, unless honest objection is made by the
parents. If objection is made in good faith, parents shall be
allowed to select from the particular branches of the prescribed
ceurse for which their children are fitted, those which they wish
them to study; and for the exercise of such right of choice the
children shall not be liable to suspension or expulsion.

5. Admissijn to Other Districts — Sow Obtained. — Before
non-resident pupils can be received into the school of another
district, they must obtain the written consent of the directors of
their own district, and of those of the district where they wish
to attend. These permits should be shown to the teacher for his
information, and then delivered to the township treasurer, as
required by section 35 ; except in the case of children from un-


organized districts, when the consent of the directors of the
district in which the school is taught must, of necessity, be

6. Persons o'oev Twenty-one — Discrimination in favor of
Soldiers. — As stated in a former decision, persons over twenty-
one years of age, whether residents or non-residents, may be
admitted into the public schools, at the discretion of the directors,
and upon such terms as they may prescribe; provided always,
that legal school children are not excluded thereby. Since such
persons are not entitled to the benefit of the public school fund,
their attendance should not be noted in the scherlule upon which
such funds are drawn, but a separate register should be kept in
order that a complete statistical report of the school can be made.
This modification of former opinions upon this point is warranted
by recent judicial decisions. In the exercise of the discretion
vested in them, relative to the admission of persons over twenty-
one years of age, it is earnestly recommended that a generous
discrimination be made by directors in favor of returned soldiers,
very many of whom have spent, in the service of their country,
several years, during which they would have been entitled to
gratuitous instruction in the public schools. The sentiment of
justice, to say nothing of gratitude and patriotism, should prompt
boards of directors to admit soldiers, free, for a length of time
equal to the portion of their minority spent in the army. Thus,
young men who enlisted at eighteen, and remained in the service
until they were twenty-one, or over, should, if they desire it, be
allowed to attend, free, for a period of three years; and in the
same way in other cases. They should not merely be permitted,
but invited and welcomed to the public schools, free of cost. I
have no doubt the next legislature will give them the legal right
to do so — but no legislative action ought to be necessary in so
plain a case of duty and privilege.

7. Pujpils under, or over age. — By section 34, one-half of the
public school fund is required to be apportioned to districts upon
the attendance certified in the schedules. By section 48, those
only who are between the ages of six and twenty-one, and resi-
dents of the district, are legally ehgible to the free schools of the
district. Without doubt the public money should be apportioned
upon the attendance of those pupils only, who are legally eligible
to attend free. Hence, none others should be reported in the



Bchedules. And if persons under six or over twenty^one, or non-
residents, are reported in the schedules of the district, township
trustees and treasurers are forbidden to include such, or any of
them, in the attendance upon which they apportion one-half of
the public funds. The schedules themselves, if kept according
to law, (§53), will show if any ineligible pupils are included,
since both the age and residence of each pupil must be given.
If these facts are not shown by the schedule, it should be rejected
as illegal.

8. Colored Children and the Public Schools. — There can be
no reasonable doubt that colored children are not intended to be
included in the provisions of the free school laws now in force in
this state. This is evident from the frequent use, in the act, of
the distinctive word "white", ( §§ T, 16, 37, TO, 79, et al.); it being
a rule in the construction of statutes that the expression of one
thing is the exclusion of another. ( 13 HI., 546.) It is further
evident from section 80, which expressly requires all school taxes
collected from persons of color, to be refunded to them.

The word, "white," it is true, is omitted in section 48, the
language of which is comprehensive and unlimited. But these
two affirmative sections (48 and 80) may consist together — the one
does not repeal the other, and such a construction must be given
as will reconcile them together. (4 Oilm., 2T1.) That all the
children in the district are to be provided with free schools, there
can be no doubt. By the provisions of section 80, colored tax-
payers are to be allowed the amount of school tax collected from
them, for the benefit of their children. Such funds, so collected,
are deducted from the general school fund, and set apart for col-
ored children. It cannot be supposed that the statute intends
to authorize colored children to withdraw their portion of the
funds from the general fund, and then at the same time permit
them to attend the schools for white children. If the school funds
collected from colored tax-payers are not refunded to them, as re-
quired by section 80, that fact does not aifect the legal aspect of
the qaestion ; for any board of trustees can be compelled by a
writ of mandamus to allow and pay over the amount of school
taxes collected from persons of color. Nor is the legal argument
affected by the notorious fact that, except in a few localities, the
amount due the colored people under section 80, even if paid, is


entirely insufficient to enable them to establish and maintain
schools of their own.

The view of the law here given is also evident from the whole
spirit and letter of the act — from the uniform contemporary con-
struction given to it — and from the concurrent decisions of all the
state superintendents — all of which look to a separation of white
and colored children in the public schools. A long established
construction of a statute by the officers to whom its execution is
intrusted, ought to have the force of a judicial determination.
A cotemporaneous construction is generally the best construction
of a law. It gives the sense of a community of the terms made
use of by the legislature. ( 8 Verm., 286, 4T8. 17 Mass., 143. 4
Gilm., 266-7).

]^or is the discrimination of the school law against the co-ad-
mission of colored children to the common schools of the state,
removed by the act of February 7, 1865, repealing what were
commonly known as the "Black Laws". There is nothing in
said act showing the least intention to repeal any provisions ol
the school law in relation to children of color; if it has any such
effect it must be by implication, alone. But a law is not repealed
by implication, where the legislature had no design to repeal it,
unless the provisions of the new law show an intention that such
provisions as are contained in the old law should no longer con-
tinue in force. ( 13 III, 728).

As to whether the late act of Congress, known as the " Civil
Kights Bill", abrogates the distinctions of our school laws in re-
spect to colored children, it is enough to say that it is not the
province of the superintendent of public instruction, but of the
proper judicial tribunals of the country to determine questions
of that character; and, until they are so determined, he cannot
be governed in his official acts by any assumed repugnance be-
tween the laws of the United States and of this State, but must
confine himself to the duties enjoined upon him by the legislature,
which are simply, and only, " to explain and interpret and deter-
mine to all school officers, the true intent and meaning of this act,
(the school law), and their several duties enjoined thereby. (§ 8.)

The state superintendent is an officer of limited jurisdiction —
his powers and functions are purely executive or administrative,
not judicial. It cannot be necessary to say that he must carry
out the provisions of the law, to the best of his ability, without re-


gard to his own private opinions as to the merits or demerits of
those provisions. Kor can it be necessary for the present incum-
bent to express his deep sense of the need of further legislation' in
respect to the education of our colored population. This decision
is given simply as the opinion of this department in respect to
the present law; and in answer to a fi^reat many questions on the
subject. The point discussed is never raised by the state super-
intendent — boards of directors are allowed to take their own
course in respect to colored children — but when the point has
been raised by others and submitted to this office, the foregoing
opinion of the law has always been given.


1. Registry Law. — The provisions and requirements of the
registry law, passed by the late legislature, and approved Febru-
ary 15, 1865, apply to the election of county superintendents of
schools, but not to the election of trustees in school townships ;
nor to the election of directors in school districts; nor to any
other school district elections. This is clear from the fact that
such elections as those for school township trustees, for school
district directors, and other school district elections, are nowhere
referred to iH the act, either in direct terms, or by warrantable
implication — also from the fact that the machinery, methods of
procedure, and duties prescribed in the act, are not applicable to
such elections — and from the further fact that the restriction as
to the right to vote contained in section 7, of the law, viz: "that
no vote shall be received at any state, county, town, or city
election,'''' itself conclusively defines the character and classes of
elections to which the law was designed to apply. A school
township election is certainly not a ''Hown election" within the
contemplation of the act. Other reasons equally conclusive
might be given in support of this opinion, but it is not necessary.
It is clear, both from the plain reading of the act, and from the
well known objects sought to be accomplished by it, that the
registry law applies to no school elections, but those for county
school superintendents. The foregoing decision is concurred in
by eminent legal authority.


2. Notices for Elections. — Kotices of all township or district
elections must be issued and posted up at least ten days previous
to the time fixed for the election; these notices for township
elections must be issued by the treasurer; for district elections,
by the directors. Notices must state the day of the election, the
place of voting, the hours of opening and closing the polls, and
the questions to be voted upon. The time for election may be
in the afternoon or evening, during reasonable hours, and time
must be allowed for all to vote, which is determined by the offi-
cers issuing the call.

3. Failure to Call Elections or Issue Notices. — In case of
failure of trustees to order elections to fill vacancies, or of treasurer
to issue notices, that duty devolves upon the county superintend-
ent. In case of such failure on the part of directors, the duty
first devolves upon the township treasurer, and next upon the
county superintendent, (§§ 25 and 42.) When the time for an
election is fixed hy law, failure to issue notices does not make
void an election held on that day.

4. Failure to Hold Election. — When there was no election
on the day fixed by law, the trustees or directors (as the case
may lequire,) may issue notices as required by law, and hold the
election on a subsequent Monday. I^ew notices may be issued
and the election held two weeks later, or on any subsequent
Monday. The old officers are not to hold over till the next
regular election, if a new election can be held.

5. Election Held on Wrong Hays, or Informally. — If an
election is actually held on some other day than that fixed by
law, or with some informality in the election, and it is ordered
and acquiesced in by the former officers, the acts of directors or
other officers holding their offices under color of right, are valid
so far as third parties and the public are concerned, until the
election is legally contested and set aside. A mere irregularity
in conducting an election, which deprives no legal voter of his
vote, and does not change the result, does not invalidate an elec-
tion. The legality of an election does not depend upon the dec-
laration of the board of election; if such declaration is withheld,
or not made through illegal causes, the office will vest neverthe-
less, for the authority, rights and powers of officers are derived
from the election, and not from the returns. In contested elec-
tions, the intention of the voters in casting their ballots should


control ; and effect must be given to that intention. {Peo'ple ex

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Online Librarystatutes Illinois. LawsSchool laws of Illinois → online text (page 22 of 26)