Fertich v. Michener.

a system of rules for the government of the public schools of the city, nearly all of which were read in evidence.

One of these rules prescribed the time to be occupied by the daily sessions of the schools, which was, in substance, as stated in the first paragraph of the answer. Another de

clared the right of every pupil to retire from the schoolroom when permission was respectfully asked, as set out in the third paragraph of the complaint. Others pertained to the duties of teachers, and still others had reference to the powers and duties of the superintendent.

The first of this latter class of rules was as follows:

"The superintendent shall have the supervision of all the schools and the general care of all school property, and act under the advice and direction of the board of trustees."

The second declared that "He" (the superintendent)" shall be especially charged with the enforcement of the rules of the board, and be held responsible for the general management and discipline of the school."

The third required the superintendent to visit weekly all the departments of the schools under his charge, and to see that the best methods of instruction were adopted.

The fourth required the superintendent to appoint meetings of teachers as often as necessary to secure uniformity of teaching and discipline, and to report to the trustees when a teacher should be found to be deficient and incompetent.

It was further made to appear that it was, and had previously been, the custom in the school which the appellee had been attending, to devote the first fifteen minutes after meeting in the morning to what was termed the opening, or morning, exercises, which consisted of prayers, chants, singing, reading, recitations, invocations and impressive short lessons, varied from time to time in the discretion of those in the immediate charge of the school; that on the morning of the 22d day of January, 1885, the temperature of the atmosphere stood at about 18° below zero, and that on that morning the appellee did not reach the school-building until

Fertich v. Michener.

after the opening exercises had begun; that she found both of the doors leading to her school-room from the hall of the building locked; that she tried both doors, and could not gain admission; that the janitor of the building invited her to approach the register in the hall, which was apparently in reasonably well heated condition, and warm herself, but that she declined under the belief that she was not allowed to stand by the register without first obtaining the consent of her teacher; that she had forgotten, if she ever knew, that she had the right to go into the principal's office and to remain there until the opening exercises were over; that she, after remaining in the hall six or seven minutes, and finding that her feet were becoming quite numb and cold, left the building and returned home; that on her way home her feet became frost-bitten or frozen; that, in consequence, she became lame and disabled, and suffered great pain at times thereafter.

It was still further shown to have been the policy of the appellee's teacher to discourage the pupils, so far as practicable, from retiring from the room during school hours, and that the appellant had concurred in that general policy, but there was no evidence tending to show that he had ever instructed the appellee's teacher not to permit her, or any one else, to retire when permission was properly asked; that the class to which the appellee belonged was usually dismissed as early as fifteen minutes past three o'clock in the afternoon; that the appellee, in common with other pupils, was sometimes detained, or kept in, as it was usually termed, for ten or fifteen minutes after the class was dismissed, and required to further study her lessons during that additional time; that the appellee usually had the impression, when she was kept in, that it was as a penalty for having retired from the room during the day, but as to the extent to which she was justified, if at all, in receiving such an impression, the evidence was conflicting; that some time in October, 1884, the appellee asked permission to retire from her school-room,

Fertich v. Michener.

but that permission was refused upon the ground that the school would close for the day in ten or fifteen minutes; that, in consequence of such refusal, the appellee suffered annoyance and inconvenience and was subjected to shame and humiliation on her way home, she having an infirmity which required her frequent retirement.

It was also an admitted fact that, soon after the commencement of the school year of 1884 and 1885, the appellant directed the teachers under his charge to instruct their pupils that when any one of them should be tardy, that is, should not arrive at the school building until after the opening exercises for the day had begun, he or she should remain either in the hall, or in the principal's office, until such exercises were over, and that the instructions so to be given were to constitute a rule to be observed in the schools of the city; and the evidence tended to show that the appellee's teacher had to some extent, and at least in a general way, instructed her pupils as directed.

One of the teachers testified that when the appellant directed his teachers as stated, he assigned as a reason for ordering the promulgation of such a rule, that the character of the opening exercises was such that the coming in of pupils during their progress seriously disturbed them, and that, in answer to an inquiry as to how such a rule could be effectively enforced, he said that if he were a teacher he would not hesitate to lock the doors of his room if necessary; and the evidence further tended to show that the appellee's teacher was in the habit of causing the doors of her room to be locked while the opening exercises were being holden.

The appellant in his testimony admitted that he had on one occasion, not specifically described, directed the doors of the school-rooms to be locked, but denied that he had given any such a direction at the time the appellee was locked out, or that he had ever given any general direction that the doors should be locked during the opening exercises, and

Fertich v. Michener.

there was no evidence tending to prove that he had ever actually given any such a general direction.

It was further made to appear that, on the morning during which the appellee had her feet frozen, the appellant was not at, or immediately near, the building which the former attended, and that the latter was only occasionally at that building.

The court gave to the jury an elaborate and what seems to have been a carefully prepared series of instructions.

The sixth of the series was as follows: "What a reasonable rule is, is a question of law, and I do not hesitate to declare a rule that would bar the doors of a school-house against a little girl ten years of age, who had come one-fourth of a mile to school of a cold winter morning, when the earth was covered with snow, and the thermometer registering 18° below zero, exposing her to the cold, or excluding her from the fire, for no other reason than that she was a few minutes tardy, is unreasonable, and in its practical operation little less than wanton cruelty, and, therefore, unlawful, and can not justify the conduct of any teacher who enforces it, immaterial by what school authority enacted or directed."

The eighth instruction told the jury that "A rule or regulation made by a teacher, requiring pupils who are tardy to remain in the hall of the building, outside of the schoolroom, during the opening religious, sacred or singing exercises, to avoid interruption or confusion incident to their entry at such a time, for the space of fifteen minutes, is a reasonable rule and lawful, provided the hall is comfortable, and provided the hall is prepared to accommodate the needs and comforts of the pupils, and the doors may be closed and locked during this fifteen minutes if necessary to enforce observance of the rule; but if the hall is cold and uncomfortable the rule is not a reasonable one, and should not be enforced."

When a corporation is duly erected or established, the law tacitly annexes to it the power of making suitable rules, reg

Fertich v. Michener.

ulations, by-laws, or ordinances for its own government and for the government of those over whom it may have jurisdiction or control. While this power of making such rules, regulations, by-laws or ordinances, as the case may be, is usually conferred in direct terms by the act of incorporation, it is nevertheless incidental to every corporation, whether municipal or private. 1 Blackstone Com. 476; 1 Dillon Munic. Corp. (3d ed.), section 308 and notes.

All by-laws and ordinances, and rules and regulations of the same general nature, must be suitably adapted to the purposes for which the corporation was organized, and can not be either inconsistent with the general law or the act of incorporation, or unreasonable or oppressive. Whether a bylaw, or other kindred regulation, is reasonable or valid, is a a question of law for the decision of the court, and hence not a question of fact for the determination of the jury. Dillon, supra, section 327; Green v. City of Indianapolis, 22 Ind. 192; State, ex rel., v. White, 82 Ind. 278 (42 Am. R. 496); Angell & Ames Corp., section 357; 1 Morawetz Private Corp., section 497.

Section 4438, R. S. 1881, which has been in force since March 6th, 1865, declares each civil township and every incorporated town and city of the State to be a distinct municipal corporation for school purposes.

The next succeeding section requires the common council of each city, and the board of trustees of each incorporated town, respectively, to elect and to keep in office three school trustees, who constitute the school board of such city or town.

Section 4444, which has reference to township trustees as well as the trustees of cities and towns, provides that such trustees shall have charge of the educational affairs of their respective townships, towns and cities, and shall employ teachers and locate and establish a sufficient and convenient number of schools for the education of the children within their respective jurisdictions.

VOL. 111.-31