This is an action brought by certain tax-paying citizens of the city of St. Louis, who are residents of a district tributary to and who have children *Page 472 attending one of its high schools, who pursue regular studies therein for the purpose of completing the course and graduating therefrom. The purpose of the action is to enjoin the Board of Education of said city from enforcing a rule adopted by it declaring that pupils who become and remain members of a high-school fraternity are rendered ineligible to membership in any organization authorized and fostered by the school and are not entitled to represent it in any manner or participate in any of its graduating exercises. Upon a hearing before the Circuit Court of the City of St. Louis, plaintiffs' petition was dismissed and the board, as a consequence, was held authorized to adopt and enforce the rule in question. From this judgment, the plaintiffs have appealed.
The Board of Education is an elective body, the number and terms of its members being prescribed by the statute of its creation. [Art. 16, chap. 102, R.S. 1919.] The board is authorized to appoint a Superintendent of Instruction. This official is clothed with power, among other things, to "have general supervision, subject to the control of the board, of the course of instruction, discipline and conduct of the schools" etc. [Sec. 11461, R.S. 1919.]
The Superintendent, in January, 1920, made the following recommendation to the board:
"Secret organizations in the high schools are undemocratic and undesirable and injurious to the free and wholesome life of these schools. They exert a pernicious influence upon their own members and upon pupils who do not belong to them, and upon the voluntary organizations of pupils, that are approved and fostered by the schools, and they are subversive of the fundamental principles upon which the public schools rest.
"It is therefore recommended that the Board of Education declare itself as opposed to their existence in the schools and forbid the pupils of the high schools *Page 473 to form or join such organizations or to contine to be members of them if they have already joined."
This was adopted as defining the regulatory action to be exercised by the board; and in December, 1920, a supplementary recommendation of the superintendent prescribing a penalty for a violation of the foregoing was adopted by the board as follows: "It is, therefore, recommended that high school pupils who refuse to conform to this regulation be declared ineligible to membership in organizations authorized and fostered by the school; that they be not permitted to represent the school in any capacity whatsoever; and that they be not allowed to participate in graduation exercises."
That portion of the statute (Sec. 11457, R.S. 1919) defining the power of the board and under which it assumes to act in this case, is as follows:
"Every such board of education . . . shall have power to . . . make, amend and repeal rules and by-laws . . . for the government, regulation and management of the public schools and school property in such city, . . . which rules and by-laws shall be binding on such board of education and all parties dealing with it until formally repealed. . . ."
I. The determination of the limit within which the power thus conferred may be exercised is the matter at issue. The influence public education exercises in the maintenance of good order and the consequent perpetuity of free government, is acknowledged by every impartial mind. The higher the intelligence ofPowers the people, the better the citizenship. RecognizingStatutory. this truth, one of the greatest men the world has produced, upon retiring from public life, left this parting injunction in his farewell address to his countrymen: "Promote then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of government gives force to public opinion, it is essential that public opinion should be enlightened." *Page 474
This was addressed to the people of the national government as then constituted. Congress, prompted probably to an extent by this sage suggestion, early began and has laudably continued to legislate liberally in the encouragement and support of public education. Helpful as this has been in the diffusion of knowledge with its consequent beneficial effects, it is after all upon the several states in their sovereign capacities, which should never be lessened, that the burden of promoting general intelligence rests. This State has not been loath to recognize the importance of this fact and in each of its constitutions has given it affirmative approval. The present constitution providing that. "A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the General Assembly shall establish and maintain free public schools for the gratuitous instruction of all persons in this State between the ages of six and twenty years." [Sec. 1, Art. XI, Mo. Constitution.] Moved by the spirit which prompted the people to incorporate this provision in the Constitution, the Legislature has, from time to time, enacted salutary laws for the conduct and government of educational institutions, and has made ample appropriations for their maintenance. Legislation of this character being remedial in the highest sense, such a construction should be given to it as will best subserve the purpose intended, provided well established rules of construction are observed and the rights of citizens, whether inherent or statutory, are not violated. In view of the beneficent purpose of public education, it was not attempted in the Constitution (Art. XI) to place any restriction upon legislative action in regard thereto other than an age limit within which the rights granted were to be enjoyed. It is therefore within the purview of legislative power to enact any laws not in violation of individual rights, defining the power and duty of boards of education and enacting such laws as the General-Assembly may deem proper for the control and management of the schools. *Page 475 The Legislature, however, in its wisdom, contrary to the course pursued in some other jurisdictions, has deemed it proper to prescribe only in the most general terms the powers to be exercised by such boards, and the regulations for the control of the schools and those attending same.
The manner in which this power has been defined is demonstrated in the statute (Sec. 11135, R.S. 1919) in regard to the power of boards of education of common schools, referred to here only by way of example, the more pertinent and concrete illustration of legislative action being found in the statute (Sec. 11457, supra) having reference to boards and schools of the character here under consideration. The reasons for this seeming legislative aloofness with its consequent avoidance of minutely defined powers of the boards and definitive regulations as to the conduct of the schools are not difficult of determination. A general statute lends itself more readily to construction than a special one. The purpose of the general statute having been ascertained, the exercise of the powers granted will extend to whatever may be reasonably deemed necessary to accomplish that purpose within the well-defined limitations heretofore mentioned. This latitude could not well be exercised under a special statute. In addition, a general statute affords more opportunity for such an interpretation as will result in denying to no pupil any of the advantages to be derived from the system, unless there exists cogent reasons therefor.
What constitutes such reasons may, as a general rule, be left, on account of the general character of the statute, to the discretion of the board. [State ex rel. O'Bannon v. Cole,220 Mo. 697; Duffield v. School Dist., 162 Pa. 483; 35 Cyc. 1135.] Aside from other considerations, which may properly regulate this discretion, is the fact that the public school system owes its existence and perpetuity to taxes drawn from the people; in a sense, therefore, the citizens may be said to have a proprietary interest in the system. *Page 476
This is true not only in a pecuniary sense in that he contributes annually to its support, but on account of the advantages extended to his children, who, within the contemplation of the law, are entitled, without stint or distinction, to whatever rights and benefits the system affords.
The power of the board to make the rule in this case is to be considered prior to a determination of its reasonableness. The power delegated by the Legislature is purely derivative. Under a well-recognized canon of construction, such powers, however remedial in their purpose, can only be exercised as are clearly comprehended within the words of the statute or that may be derived therefrom by necessary implication, regard always being had for the object to be attained. Any doubt or ambiguity arising out of the terms of the grant must be resolved in favor of the people. [Watson Seminary v. County Ct. Pike Co., 149 Mo. l.c. 70, and cases, 45 L.R.A. 675; Armstrong v. School Dist.,28 Mo. App. 180; 25 R.C. L, p. 1091. sec. 306 and notes.]
This does not mean that the grant need contain a specification of each act authorized to be done, but that the words used be sufficiently comprehensive to include the proposed act. Express authority may be general as well as particular, and although not defined in words, it must be clearly inferable from the purpose of the act.
II. In construing the statute from which the board derives its power in accordance with the foregoing canon, it is of first importance to determine whether the grant authorized the adoption of the rule in question. Dependent upon theReasonableness. manner in which this has been determined, the reasonableness of the rule may become a proper subject for consideration. The purpose of the rule, broadly stated, is to prohibit pupils from participating in any extra-curriculum activities outside of school hours and at their homes which have not received the approval of the board. Speaking more within the terms of the rule, it *Page 477 places the ban of discrimination upon pupils and their exclusion from graduation exercises and honors, who unite with and participate in the activities of "secret organizations," by which term, as the evidence discloses, certain Greek-letter societies are intended to be designated.
It has uniformly been held in this State in construing a general statute, such as is here under consideration, that the domain of the teacher — in this instance the board — ceases when the child reaches its home unless its act is such as to affect the conduct and discipline of the school. [Dritt v. Snodgrass,66 Mo. 286; State ex rel. Clark v. Osborne, 24 Mo. App. 309,32 Mo. App. 536.] The testimony introduced by the respondent, much of which was inadmissible under the rules of evidence, is to a great extent made up of conclusions drawn from comparisons made by teachers from an ex parte examination of records kept by themselves, an inspection of which, for the purpose of securing evidence in this case, was denied to others. From these records, covering but a semester, it is attempted by a system of percentages to sustain the conclusion that members of the fraternities here sought to be tabooed received lower grades than other students. No charge is attempted to be made of any action having a semblance of moral turpitude, nor are the records of any individuals designated, which would at least have given more credence to the evident implication that their membership in the proscribed orders accounted for their delinquencies. Neither the deportment nor the scholarship of any of the pupils sought to be brought under the ban of this rule is attempted to be assailed; these are cardinal essentials, ample in themselves, to enable a pupil to secure admission to any institution of learning. Having secured admission, he is entitled, in an institution supported by the State, to enjoy all of the rights and privileges accorded to others therein. That this rule does not apply, as was the case in Pratt v. Wheaton College, 40 Ill. 186, to pupils of a privately endowed institution or one maintained *Page 478 by others than the State, does not demand comment other than to note the distinction.
A careful review of this record does not impress us with the cogency of the proof offered by the respondent in support of this rule.
III. There is nothing shown as to the conduct of the pupils alleged to be within the purview of the rule to support the conclusion that their membership in theConduct Outside societies designated has proved detrimental toof School. the operation and control of the school. In the absence of such evidence the reason for the rule, so far as this case is concerned, ceases to exist.
Ancillary to this conclusion is the question as to the authority of the board generally in the adoption of rules of this character. A fair test as to that limit is the one above defined, namely, that no rule should be adopted which attempts to control the conduct of pupils out of school hours after they have reached their homes which does not clearly seek to regulate actions, which, if permitted, will detrimentally interfere with the management and discipline of the school. The rule as thus expressed clearly defines the line of demarcation between the respective domains of the parent and the teacher. Judicial sanction has been given to it in Dritt v. Snodgrass, 66 Mo. 286, 27 Am. Rep. 343, in which this court held that the directors of a school district had no right to enforce a rule authorizing the expulsion of a pupil for attending social parties after such pupil had returned to his home and his parents had approved his attending the party.
Another illustration of the approval of this conclusion is found in an opinion of the Kansas City Court of Appeals. In that case the faculty of one of our State normal schools had adopted a rule suspending pupils who attended social gatherings out of school hours. A pupil, after returning to her home and with her father's consent, attended a party. It was held that a statute especially *Page 479 applicable to normal schools, authorizing the faculty to suspend or expel a pupil for contumacy, insubordination or immoral conduct did not authorize the adoption of a rule prohibiting a pupil from attending a social party under the conditions here stated. [State ex rel. Clark v. Osborne, 24 Mo. App. 309.]
In King v. Jefferson City School Board, 71 Mo. 628, this court held that it would interfere to prevent the enforcement of a rule of a school board which manifestly reached beyond its sphere of action and related to subjects in no wise connected with the supervision or successful operation of the school, or which was plainly calculated to subvert or retard the leading object of legislation on this subject. It was further held in this case that a rule authorizing suspension for a certain number of days for continued absence was not unreasonable. This, however, does not affect the general rule as first stated. A like ruling for a similar infraction was made in Burdick v. Babcock, 31 Iowa 562, in which it was declared that such absences were detrimental to the good order and best interests of the school. Upon this alone the rule was upheld.
A rule adopted by the trustees and faculty of Purdue University, an Indiana State institution, rendering membership in a Greek-letter fraternity a disqualification for admission to the university as a student, was declared unauthorized. The court said that since the university was an institution primarily endowed by Congress and continued in existence by appropriations made by the General-Assembly, it was therefore an educational institution sustaining a relationship to the people at large analogous to that occupied by other schools and colleges maintained at public expense, and one in which all inhabitants of the State had a common interest; and that the rule refusing admission or excluding students because they were members of a Greek-letter fraternity or other secret college society was unauthorized and invalid. [State ex rel. Stallard v. White,82 Ind. 278, 42 Am. Rep. 496.] *Page 480
IV. The foregoing cases, which apply more particularly to social rights, are to be distinguished from those in which rules have been sustained forbidding action clearly detrimental to the good order and best interests of the school, whetherMoral committed in school hours or while the pupil is onTurpitude. his way to or from school, or possibly after he has returned home; this last provision, however, must reasonably be held to apply to such personal overt acts as in themselves render the pupil objectionable as a member of the school. [Hobbs v. Germany, 94 Miss. l.c. 479; Dresser v. School Brd., 135 Wis. l.c. 627; Lander v. Seaver, 32 Vt. l.c. 120.] For example: A pupil may be punished for disrespectful language in regard to a teacher after he has returned home and is with another schoolmate passing the teacher's house. [Lander v. Seaver, supra.]
In recognition of the right of a board to enforce a disciplinary rule, our own Supreme Court has held that punishment may be inflicted for violation of a rule prohibiting the use of profane language, quarreling or fighting among pupils, although the violation occurred one-half or three-quarters of a mile from the school-house, after the school had adjourned for the day and the pupils were on their way to their respective homes. [Deskins v. Gose, 85 Mo. 485, 55 Am. Rep. 387.] A Texas case, Hutton v. State, 23 Tex. App. 386[23 Tex. Crim. 386], is of like effect.
An extreme case of this character is that of Kinzer v. Toms,129 Iowa 441, 3 L.R.A. (N.S.) 496, in which a rule of a school board forbidding pupils to play football under the auspices of the school was held not to be unreasonable or in excess of the authority of the board, although, applied to conduct on holidays and away from the school grounds. This case is an extreme illustration of the upholding of a disciplinary rule the violation of which involves no moral turpitude.
A rule to maintain the purity and discipline of the public schools authorizing the exclusion of pupils therefrom *Page 481 because of licentious and immoral conduct was authorized, although the pupil accused was guilty of no immoral conduct within the school. [Sherman v. Charlestown, 8 Cush. (Mass.) 160.]
V. Cases in which the rules promulgated were based on express statutory authority forbidding the organization of or membership in a fraternal organization furnish no guide for the determination of the matter at issue. Of this class is Waugh v. Trustees, 237 U.S. 589, 59 L. Ed. 1131, aExpress Statutory Massachusetts case in which the United StatesProhibition. Supreme Court upheld the power of the Legislature of that State to enact a law prohibiting students of its educational institutions from affiliating with fraternal orders. The ruling was simply to the effect that the prohibition was a matter within the power and wisdom of the State legislature, and that its enforcement did not offend the due process provision of the Fourteenth Amendment.
The rule in Bradford v. Board of Education, 18 Cal. App. 19, was under an anti-fraternity statute of that State and, hence, is not controlling here.
VI. Another class of cases is where the boards are given a general charter power not subject to review by theGeneral courts. The rulings of the supreme courts of WashingtonCharter and Illinois furnish illustrations of cases of thisPower. character.
Wayland v. Board of School Directors, 43 Wash. 441, 7 L.R.A. (N.S.) 352, except as to the qualifying nature of the charter, is in conflict with our ruling herein and with the current of authority elsewhere. This ruling is based upon a general statute, and upholds a rule adopted by the board of school directors excluding from the high schools of Seattle members of fraternities organized against the will of the board, although such memberships were with the consent of the parents of the pupils and the meetings of the fraternities were held *Page 482 out of school hours. The penalty prescribed for an infraction of this rule was to debar such pupils from athletic games, musical and literary societies and to deprive them of customary honors. In short, the penalty prescribed in the rule under consideration seems to have been copied in all of its exclusiveness from that adopted by the Seattle board. Aside from whatever support the conclusion reached in that case may derive from the charter, the reasoning employed by the court is faulty and its conclusion unfounded. It speciously contends that the rule does not exclude the appellant from the Seattle high school; that he does and can attend school, but forfeits certain privileges by reason of his membership in the prohibited fraternity. This reasoning ignores the fact that the schools are public institutions, supported by the taxes of the people, to which the children of all of its citizens within the appropriate districts may enjoy the privileges of same unless their conduct is such as to injuriously affect the school. Those who are members of the prohibited fraternities, unless same are shown to possess the detrimental features stated, are as much entitled to all of the advantages afforded by the school as other pupils. To deny them this right constitutes an unjust discrimination unsupported by right or reason, which should not receive judicial sanction. The ruling, therefore, in so far as it may be regarded as affording a persuasive precedent for our action, will not be followed.
The case of Wilson v. Board of Education, 233 Ill. 464, 15 L.R.A. (N.S.) 1136, reaches the same conclusion as in the Wayland Case upon a somewhat similar state of facts. The criticism made and conclusion reached as to the ruling in the Wayland Case applies with like force to the Wilson Case.
The lack of power of the board to adopt the rule in question, having been demonstrated, a discussion of its discretion is rendered unnecessary. Either by reasonable implication or direct expression, the limits of that discretion may be readily determined from what *Page 483 has heretofore been said. It will suffice, therefore, to say it should extend no further than may be found reasonably necessary to promote the intelligent conduct and control of the school, as such, within the domain we have defined. Any other interpretation would remove all limit to the exercise of discretionary power, leaving it to the judgment, whim or caprice of each succeeding board. We have not reached that point in the interpretation of a delegated power where, with a proper regard for the rights of citizens and the rules of construction, we feel authorized in holding, as was held in Wayland v. Board, supra, that the board's power is to be limited only by its discretion free from any determination by the courts.
From all of the foregoing it follows that the plaintiffs are entitled to the relief sought.
We therefore reverse and remand this cause, with directions to the circuit court to set aside its judgment and enter a decree herein perpetually enjoining the respondent from in any manner enforcing the rule in question. It is so ordered. Woodson,C.J., and Graves and Higbee, JJ., concur; James T. Blair,J., concurs in result; David E. Blair, J., dissents in separate opinion, in which Elder, J., concurs.