Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1874-08-07
THE Oh THOLIC SCHOOL CASE.
Opinion Of Hon, II. n. wheeler,
ChanceIIor

but where there is any denial of the bill b
, the answers or discrepancy between tn
bill and answers, the answers are taken {
: be true. From the bill and answers s
considered, ii appears in substance that tn
orators, some twenty-eight in number, ar
all members of the Roman Catholic churc
by the usages and modes of worship q
which the day called Corpus Christi day !
regarded and set apart as a holy day OF
which II is the custom of all good catholic
to attend and to have their children attont
, divine service that they are each parent
OF children who have been accustomed II
attend the common schools of the defen
dant school district OF which the other dc
PENDANTS arc the prudential committee
that this committee and their predecessor
in office have, for the purpose of socurin:
punctual and regular attendance of schol
airs at school, for a long time had and en-.
forced uniform rule of school that ans
scholar who should be absent from schoo
without permission of the teacher or of the
committee should be suspended from fur.
ther attendance during that term; thai
children of the orators, scholars of the
schools OF this district were, by direction OF
the orators and of the priest of their church
absent from school on Corpus Christi day
of this year, without permission of either
their teachers or Of the prudential COM
mttee, for the purpose of attending divine
service according to the mode of worship
OF the orators and that for that absence
these scholars have been suspended from
the schools by the defendants for the re-
mainder of the term. The orators seek an
injunction to restrain further suspension
for that cause.
No point has been made in the argument
OF this motion but that the orators as par
ents of the scholars are the proper parties
to bring this bill, nor but that they proper
ly Joined in bringing 1t. 1t has been sew
eral times held that a parent could not
maintain any action at law for the wrong
full expulsion Of his child from school, but
that the injury was TO, and the action for 1t
should be brought by or in behalf of the
child. Donahoo vs. Richards, 3s Maine 376
Spear VS. Cummings, % Pick. pa, a. men
toned by. Shaw Oh. J. in Sherman VS.
| Charleston Cush. 100. Stephenson VS.
Hall ell al. ID Barb. 222. 1t may he, how:
ever, that parents have such duty to per-
form by and interest in educating their
children that they can maintain a proceed
ing IN equity TO prevent wrongful interfer-
ence with their duty and interest in that
respect. And perhaps Coryton and Findce
VS. Lithebye, Saund. liz and Weller and
wife and others VS. Baker, the case Of the
dippers at Tunbrdge wells, and cases a,
lax nd in a
are sufficient authority for the ioinder Of
the orators in this bill. At most neither
the want Of proper interest in tho orators
nor the improperly of their joinder is
thought to be so plain as, without objection
made on that account, 10 warrant turning
this motion in any way upon it. As the
orators have brought this bill the main
question raised by the motion is whether
the orators have right to take their chit
drcn who are scholars attending school out
OF school TO attend divine service accord
ing TO the usages Of their church during
the session OF school against the regulations
OF the schools as made by the committee,
or the committee have the right by regu.
lation to require punctual and regular at
tendance by the scholars on all sessions of
the schools and to expel scholars for vio-
lating the regulation by absence TO at
tend divine service.
The public schools of this state are pro-
vded for by laws enacted by the legisa-
ture at various times according to pro-
vision in Sect. IL of the constitution where
In 1t is declared that "a competent number
of schools ought TO he maintained in each
town for the convenient instruction of
youth" There could not well he a school
for convenient instruction without some
authority to control the sessions of the
school and attendance Of the scholars rest
ing somewhere besides in each parent sew
orally. In providing for the schools the
legislature has provided Tor this necessity
by making it the duty of the prudential
committee, sS9, and of the town supern-
tendent, sl0, Chap. %, Gen. Stats, "to
adopt all requisite measures for the inspec-
ton, examination and regulation of the
schools and for the improvement of the
scholars in learning" and by making the
measures of the town superintendent para
mount in cases OF disagreement or differ
ence between them. Laws of 1872, 55.
Under these provisions of the laws, the
schools maintained are such as the com
mittee and superintendent make them by
the measures they adopt pursuant to the
authority given them by the same power
that created the schools. AS they are regu-
lated they are for the benefit of all the
youth of the districts maintaining them
proper 10 attend school who comply with
the regulations. These laws have confer
red upon the parents of all such children
tho privilege of sending their children to
the schools upon compliance with all the
measures lawfully adopted, but not an alb
solute right 10 send them without regard
to the regulations.
In delegatlng TO committees and SUPER
intendents the authority to adopt all req
uisite measures for regulating the schools.
the legislature conferred upon them trust
very important to scholars and parents rs
they are connected with the welfare of the
schools. In determining what measures
to adopt and how to enforce them, the COM
mittee and superintendent act in a capacity
that is in its nature judicial. So long as
they act within the scope of their authori-
ty, and not in violation of any law of the
State, their decisions In respect to these
matters, subject to the superiority of The
superintendent over the committee, are
final. The right Of parent to send his
child to school and the right of the scholar
10 attend school are each subordinate 10
this authority of the committee and super.
intendent. This is apparen: from the de-
elsion made in Guernsey VS.. Pitkin, 30 VI.
"a, where 1t was held that the committee
might lawfully exclude a scholar from
school for refusing TO write English COM
positions when required. Also from Spill
err VS.. Woburn, IL Allen, l27, in which it
was decided that The comn,iItaa oo,,Il