The weekly times-record. (Valley City, N.D.) 1912-1922, 1921-09-15
JUDGE ENCLERT
G: Is DECISION

G.. E|S DECISION
Mrs. IagaIS Anderson, Of Fargo
nlos.aef 81 = h William Anderson
l3-ysar-old who was killed when
struck by >. wing at the Agassiz
school yard Dec. l, 1920, was de-
med any co ensation for the death
ci Ter son. : decision handed down
acaay by u IN. ]. Englert Of Val
ley City, il er action against the
Ci.y Ct ga asking $4,000 dam
ages.
In his decision Judge Englert
points cut that ''the city demurred
to tne complaint, claiming that it is
not Liable in damages for injuries to
a pupil attending the public schools,
occasloned by or through any negli-
gence or fault Of the board of educa-
tion." In support Of this contention
the court quotes the case of Vallelly
e Brcckhof against the park COM
missioners of the city of Grand
Forks, in which the commissioners
were not held liable.
81 have thus somewhat at length
set forth the important parts OF this
special act" says the decision" so
that the matter here in controversy
may be better understood. After
carefully analysing this special char
ter pause to ask myself this ques-
ton: Has the City Of Fargo, in it's
corporate capacity, a word to say in
or control over the management and
conduct of the public schools of said
city under this act of the territorial
Legislature? AS I see and view it,
it has none whatever. It simply
holds the bare, naked title to the
school property as trustee for the
schools.
The reason for this is found in
the principle that the city and school
districts are agents of the common
wealth engaged in the great public
charity Of education. The city, in
its corporate capacity, derives no pc
cuniary benefit from its public
schools. The schools are. kept and
maintained at the expense Of the
public, and they are carried on for
educating the children of the land,
and for their general physical and
mental development.
"It is next contended that the
chutes and swings were and are a
public nuisance. But what is the alle-
cation as to that? The complaint
alleges that they were tan attractive,
enticing, inexcusable and alluring
public nuisance Of course these al
legations are mere conclusions when
considered in connection with the
rest of the complaint In those parts
of the complaint where the chutes
and swings are described in detail it
is apparent that the chutes and
swings in question were we'll and
properly constructed.
"It is matter Of common knowl
edge that chutes and swings are pro-
vided for on every well equipped
public school playground. It is equal
ly a matter of common knowledge
that these chutes and swings are
installed by the school authorities to
a i'd in the physical development Of the
children, and for the purpose of aid
ing them in their general amusement
health and happiness.
"Inere is nothing in the complaint
showing or even claiming that those
chutes and swings are any different
in character and construction than
thoza that may be found upon. all
modern and we'll regulated play
grounds Of the public schools. Simply
alleging that thing is an alluring
nuisance and liable to attract child
rem does not make it so in law.
4 "But in the case at bar the city
would not be liable although the
chutes and swings were a nuisance.
McCarten VS.. City Of New York, 133
N. Y. Sup. 339. In this case, the court
said: BY virtue Of the provisions
Of section 1856 Of the Greater New
York charter, the title to all proper
ty, both real and personal, acquired
by purchase, bequest, or devise, for
school or educational purposes, is
vested in the city, but the care and
control of the property is given to the
board of education, and it is express
ly provided that suits in relation to
such property shall be brought in the
name of said board. : - It is quite
evident from these statutory provis-
ions that the city could not be held
responsible for the acquisition. OF,
erection or maintenance of the school
building in question, and therefore is
not liable on the theory that it has
erected or was maintaining nul-
sance.'
], s'It follows that the demurrer must
be sustained and the action discissed."
n n t u.