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Fertich v. Michener.

Section 4445 authorizes the school trustees of such incorporated towns and cities to employ a superintendent for their schools, " and to prescribe his duties, and to direct in the discharge of the same."

Construing these general statutory provisions in connection with the incidental powers of corporations to which we have referred, this court has frequently, either expressly or impliedly, held that the various school boards and other educational authorities of the State have the power to adopt appropriate rules and regulations for the government of the schools under their control, and that when so adopted such rules and regulations are analogous to by-laws and ordinances, and are tested by the same general principles. Danenhoffer v. State, 69 Ind. 295 (35 Am. R. 216); State, ex rel., v. White, supra; State, ex rel., v. Webber, 108 Ind. 31 (58 Am. R. 30).

The accepted doctrine is, that the general power to taki; charge of the educational affairs of a district or prescribed territory includes the power to make all reasonable rules and regulations for the discipline, government and management of the schools within the district or territory. Thompson v. Beaver, 63 111. 353; Roberts v. City of Boston, 5 Cush. 198; Sherman v. Charlestown, 8 Cush. 160; People v. Medical Society, 24 Barb. 570; Spiller v. Wobum, 12 Allen, 127; Hodgkins v. Rockport, 105 Mass. 475; State v. Burton, 45 Wis. 150 (30 Am. R. 706); Ferriter v. Tyler, 48 Vt. 444 (21 Am. R. 133).

But this does not imply that all the rules, orders and regulations for the discipline, government and management of the schools shall be made a matter of record by the school board, or that every act, order or direction affecting the conduct of such schools shall be authorized or confirmed by a formal vote. No system of rules, however carefully prepared, can provide for every emergency, or meet every requirement. In consequence, much must necessarily be left to the individual members of the school boards, and to the Fertich v. Michener.

superintendents of, and the teachers in, the several schools. Russell v. Lynnfield, 116 Mass. 365.

It follows that any reasonable rule adopted by a superintendent, or a teacher merely, not inconsistent with some statute or some other rule prescribed by higher authority, is binding upon the pupils.

In the present case, the rule requiring the appellant to visit weekly all the schools under his charge and to see that the best methods of instruction were adopted, and which was read in evidence, necessarily conferred upon him authority, if authority had otherwise been wanting, to order and promulgate such additional rules as the best interests of the schools might seem to require, within the limits to which all such rules may extend.

As applicable to the structure and situation of the schoolbuilding which the appellee attended, and to the purposes designed to be accomplished by it, the rule requiring tardy pupils to remain either in the hall or in the principal's office until the opening exercises were over,was a reasonable rule, and one to which, as an abstract regulation, no serious objection can be urged.

Tardiness is a recognized offence against the good order and proper management of all schools. Bur dicky. Babcock, 31 Iowa, 562. A tardy pupil ought not, therefore, to complain of some inconvenience or annoyance at having to remain in some other part of the building for the short period of time required to complete the opening exercises. But the manner of enforcing such a rule may, as in this case, cause a very different question to be presented. 2 Dillon Manic. Corp., section 950.

In the enforcement of all rules for the government of a school, due regard must be had to the health, comfort, age and mental as well as physical condition of the pupils, and to the circumstances attending each particular emergency.

More care ought to be observed in looking after the comfort of pupils, aud especially those of tender age, in exFertich r. Michener.

tritfiiely cold weather than when the atmosphere is nearer a mean temperature. Pupils known to have some mental or physical infirmity may require some relaxation in the strict enforcement of such rules as against them.

No rule, however reasonable it may be in its general application, ought to be enforced when to enforce it will inflict actual and unnecessary suffering upon a pupil. Rules are often adopted inflicting a penalty for absence from school without proper or some prescribed leave, and rules of that class have always, so far as our information extends, been held to be reasonable and sometimes necessary school regulations, and yet such rules could not be lawfully enforced against a pupil detained from school by sickness, a violent storm, a death in the family, or any physical disability to attend.

A school regulation must, therefore, be not only reasonable in itself, but its enforcement must also be reasonable in the light of existing circumstances. The habit of locking the doors of the school-room during the opening exercises observed by the appellee's teacher was not an unreasonable enforcement of the rule under consideration, in moderate weather and under ordinary circumstances. But to lock the doors on an extremely and unusually cold morning, without causing special care and attention to be given to the oomfort of such pupils as might thereby be required to remain in some other part of the building, was undoubtedly both an unreasonable and a negligent, and hence an improper enforcement of the rule.

With these general principles in view, neither one of the instructions hereinabove set out can be sustained. They both utterly confounded the reasonableness of the rule to which they evidently referred as an abstract and general regulation, with its improper and unreasonable enforcement, and in effect submitted to the jury the reasonableness of the rule as a hypothetic question, dependent upon the existence or nonexistence of certain enumerated facts. Iu other words, they Fertich v. Michener.

both made the question of the validity of the rule one of I mixed law and fact to be determined by the jury, instead of a question of law, as it really was, for the decision of the court.

The court also instructed the jury to the effect that if the appellee was at any time detained in the school-room for a period of ten or fifteen minutes after her class was dismissed, as a penalty for having asked leave to retire and having retired from the room during school hours, such detention was a false imprisonment, and that a teacher who might refuse to permit a pupil to retire from the school-room, in accordance with the rule set out in the third paragraph of the complaint, would be liable for whatever damages thereby resulted to the pupil.

In our view of the principles underlying this case, that instruction was also erroneous. Such a detention after the rest of the class was dismissed may have been unjust, in the particular instance, as well as in a general sense, to the appellee, and it, as well as the refusal of permission to retire, may have been a violation of the spirit of the rule referred to; but, upon the hypothesis stated in the instruction, the detention did not amount to a false imprisonment, and the refusal of permission to retire did not constitute a cause of action against the teacher.

The recognized doctrine now is, that a school officer is not: personally liable for a mere mistake of judgment in the government of his school. To make him so liable it must be shown that he acted in the matter complained of wantonly, | wilfully or maliciously. Cooper v. McJunldn, 4 Ind. 290; Gardner v. Skate, 4 Ind. 632; Danenhoffer v. State, 79 Ind. 75: Elmore v. Overton, 104 Ind. 548 (54 Am. R. 343); Churchill v. Fewlces, 13 Bradw. 520; McCormick v. Burt, 95 111. 263 (35 Am. R. 163); Harman v. Tappenden, 1 East, 555; Drill v. Snodgrass, 66 Mo. 286 (27 Am. R. 343).

The instruction consequently fell short of telling the jury all that was necessary to establish a liability for either the detention or the refusal referred to by it.

Ferticli v. Michener.

The detention or keeping in of pupils for a short time after the rest of the class has been dismissed, or the school has closed, as a penalty for some misconduct, shortcoming or mere omission, has been very generally adopted by the schools, especially those of the lower grade, and it is now one of the recognized methods of enforcing discipline and promoting the progress of the pupils in the common schools of the State. It is a mild and non-aggressive method of imposing a penalty, and inflicts no disgrace upon the pupil. The additional time thus spent in studying his lessons presumably inures to the benefit of the pupil. However mistaken a teacher may be as to the justice or propriety of imposing such a penalty at any particular time, it has none of the elements of false imprisonment about it, unless imposed from wanton, wilful or malicious motives. In the absence of such motives, such a mistake amounts only to an error of judgment in an attempt to enforce discipline in the school, for which, as has been stated, an action will not lie. And in this connection it is perhaps proper to say that there is nothing in the evidence, as we construe it, tending to show that the appellee's teacher was actuated by wantonness, wilfulness or malice in any of the alleged wrongs of which the appellee has complained. As there was a failure of proof as against the teacher, the necessary inference is that the evidence was insufficient to establish a cause of action against the appellant. As to what constitutes a reasonable rule for the government of a school, see the case of Burdick v. Babcock, 31 Iowa, 562, above cited.

The judgment is reversed, with costs.

Filed April 28, 1887.

On Petition For A Rehearing.

Niblack, J.—Rule 24 of this court provides that a "rehearing must be applied for by petition in writing, setting forth the cause for which the judgment is supposed to be erroneous." As applicable to that rule, see the cases of

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