Dritt v. Snodgrass.

the commutation of Reno had, three days prior thereto, on the 8th of Jannary, been presented and acted on by said warden. The case of Moses De Puy, reported in 3 Benedict's D. C. R. 307, to which we have been cited, has no application. The principle there decided was that to make a pardon a completed act, there must be a delivery of it to the prisoner, or some one for him, and that, until this is done, the pardon is revocable. The correctness of these declarations are undisputed by us.

The case in 44 Penn. St., supra, and the case of State v. Leak, 5 Ind. 359, to which we have been cited, do not apply, the pardon in both cases having been declared void, because they were procured by fraud and forgery.

We have already shown, that in the case before us there is no pretense of fraud in the procurement of the commutation. The prisoner having served out the full term to which his sentence was commuted, his further imprisonment is illegal. He is entitled to a discharge from the imprisonment of which he complains, and he is, therefore, by the judgment of this court, discharged therefrom. All the judges concurring, except HOUGH, J., not sitting. Discharged.

DRITT V. SNODGRASS.

(66 Mo. 286.)

Schools-powers of school directors to make rules- malice.

Under a statute authorizing school directors to make and enforce all needful rules and regulations for the government, management and control of the schools, not inconsistent with the laws of the land, school directors made a rule that no pupil should, during the school term, attend a social party, and expelled the plaintiff for a violation of that rule by permission of his parents. In an action for damages for such expulsion, held, that the directors had exceeded their powers, but inasmuch as there was no malice, willfulness or oppression, they were not liable.*

A

CTION for damages for wrongful expulsion from a public school. The opinion states the case.

* See Ferriter v. Tyler (48 Vt. 444), 21 Am. Rep. 133.

Dritt v. Snodgrass.

Rice & Walker, with J. L. Smith, for plaintiff in error.

Draffen & Williams, with James E. Hazel, for defendants in

error.

HENRY, J. The cause was commenced and final judgment entered upon demurrer to second amended petition in the Circuit Court of Moniteau county, Missouri. The record consists of the second amended petition, the separate demurrer of Snodgrass and Redmond, and the separate demurrer of Frederick, and the judgment of the court upon the demurrers.

The petition avers that Joseph F. Dritt is a minor, under 21 years of age that John B. Dritt was appointed his next friend by the clerk of the Circuit Court of said county; hence this suit is prosecuted to the use of Joseph F. Dritt, by his next friend, John B. Dritt. The petition further avers that prior to the accruing of plaintiff's cause of action the town of Tipton, in said county, had been duly incorporated, and a plat thereof filed and duly recorded in the recorder's office of said county; and that prior to the accruing of plaintiff's cause of action, by virtue of the laws of the State of Missouri authorizing cities, towns and villages to organize for school purposes, the said town of Tipton was organized as a single school district, and that it has been to this date an acting organization as such; that on, to wit, the 20th day of January, 1875, and for a long time prior and since that date, the defendants, Isaac Snodgrass and William Redmond, together with four other persons, each of whom, then being citizens and electors within said school district, were duly elected and qualified school directors within said school district, and that they were for the period aforesaid the school directors of said school district; that the said school directors, by virtue of the power and authority in them vested by law, had, prior to the date last aforesaid, established in said school district a school for the education of all the white children residing therein, between the ages of five and twenty-one years, and had employed, as the teacher of said school, the defendant, P. A. Frederick, and that the said P. A. Frederick was a legally qualified teacher to teach said school; that for a long period of time prior and subsequent to the date last aforesaid, the said school was in session with the said P. A. Frederick as teacher therein, for the purpose of the instruction and education of the youth aforesaid within said school district, in the branches of edu

Dritt v. Snodgrass.

cation then being taught in said school, to wit: reading, writing, spelling, orthography, grammar, geography, arithmetic and history; that at the date last aforesaid, and during all the time subsequent thereto to this date, plaintiff has resided in said school district; that he was during all the time aforesaid, and is now, over five and under twenty-one years of age; and that he was then and is now, under the law, entitled to attend said school as a pupil, and be instructed in the various branches of education then and there being taught in said school; that prior to the date aforesaid, and for a long period of time, and up to the said 20th day of January, 1875, he was a regular pupil and scholar in said school, and received instruction in the various branches of education aforesaid; that under the law of the State he had a right to continue in said school as a pupil, and that it was not only the duty of the directors to permit him to attend said school during all the time aforesaid, but to protect him in so doing; that on, to wit, the 20th day of January, 1875, and while he was a pupil of said school and being instructed in the several branches of learning then being taught therein, the said Isaac Snodgrass and William Redmond, together with the other members of the school board aforesaid, and the said P. A. Frederick, teacher of said school, not regarding their duties aforesaid, wrongfully, illegally, oppressively, willfully and maliciously, and in abuse of their authority as school directors and teacher aforesaid, did expel this plaintiff from said school for the following reasons, and none other, to wit: That the said plaintiff did, previous to the date aforesaid, in the evening, after said school had been dismissed for the day, attend a party composed of the young people of said town, and participate in the amusements thereof; that the said board of directors and teacher of said school had made a rule for the government of said school, prohibiting the scholars from attending such parties during the continuance of said school, and that it was for a violation of this rule that he was expelled; that the said party was made up of invited guests, and that their conduct was strictly innocent, inoffensive and moral, tending only to social culture; that plaintiff was at the time about 17 years of age, and that he attended said party with the permission of his father and mother, with whom he at the time lived; that he had a right to attend said party, and that the defendants had no right or authority to dictate to or control him in the premises, and that the act aforesaid of said defendants was an abuse of any VOL. XXVII — 44

Dritt v. Snodgrass.

authority conferred upon them by the laws of this State; that the defendants have in manner and form aforesaid, ever since, to this date, prohibited the plaintiff from attending said school, whereby the plaintiff by the illegal, unlawful, willful, oppressive and malicious acts of defendants, has been deprived of the benefits of said school, and the instruction aforesaid therein, and asks damages in the sum of $1,000. The petition is signed by Joseph F. Dritt, by Rice and Smith his attorneys.

The grounds of demurrer are, for Snodgrass and Redmond : 1st. Petition does not state facts sufficient to constitute a cause of action.

2d. It appears upon the face of said petition that the defendants were directors of said school district, and were invested with discretionary authority to make and enforce all needful rules and regulations for the government and control of said school, and they cannot be made liable to plaintiff under the allegations of the petition.

3d. Because it appears upon the face of the petition that the plaintiff has not legal capacity to sue by attorney, and he does not appear by next friend.

Grounds of demurrer on the part of Frederick:

1st. Petition does not state facts sufficient to constitute a cause of action against defendant.

2d. It appears upon the face of said petition that the defendant was the teacher in the public school in the town of Tipton, em. ployed by the board of education of said town, and as a matter of law he is not liable to plaintiff upon the facts stated in the petition -said school being under the control and management of the board of education, and not of himself.

It appears on the face of the petition that plaintiff had not legal capacity to sue by attorney, and he does not appear by next friend.

The court sustained each of said demurrers, and entered up final judgment thereon against the plaintiff for costs; whereupon the plaintiff brings the cause to this court by writ of error.

By section 8, Wagner's Statute, page 1264, it is provided, that the board of directors "shall have power to make and enforce all needful rules and regulations for the government, management and control of such schools and property, as they shall think proper, so that the same shall not be inconsistent with the laws of the land,

Dritt v. Snodgrass.

and, generally, to do all lawful acts which may be proper and necessary to carry fully into effect the purposes of the act." It appears in this case, from the petition, that the directors had made a rule for the government of said school, prohibiting its pupils from attending social parties; that the plaintiff had violated said rule, with the consent of his father and mother, and for so doing was expelled from the school, and he seeks to recover damages against the teacher and a portion of the directors for such expulsion. Is the action maintainable? Plaintiff cites many authorities as sustaining his position, and we have carefully examined them, and also those cited by the defendant, and are fully satisfied that the weight of authority is against the plaintiff.

School directors are elected by the people, receive no compensation for their services, are not always, or frequently, men who are thoroughly informed as to the best modes of conducting schools. They are authorized, and it is their duty, to adopt reasonable rules for the government and management of the school, and it would deter responsible and suitable men from accepting the position, if held liable for damages to a pupil expelled under a rule adopted by them, under the impression that the welfare of the school demanded it, if the courts should deem it improper. They are to determine what rules are proper, and who shall say that the rule adopted in this case was harsh and oppressive? I might think it was; wiser men would maintain that it was proper and right, that pupils attending social parties are liable to have their minds drawn off from their studies, and thus to be retarded in their progress; but whether the rule was a wise one or not the directors and teachers are not liable to an action for damages for enforcing iteven to the expulsion of a pupil who violates it. While this court might, on mandamus to compel the board and teacher to admit a pupil thus expelled, review the action of the board, and pass upon the reasonableness of the rule, which we do not, however, decide here, yet the doctrine that the courts could do this is very different from that which would hold the directors liable in an action for damages for enforcing a rule honestly adopted for the maintenance of discipline in the school. That such an action is not maintainable is fully established by Donahoe v. Richards, 38 Me. 391; Spear v. Cummings, 23 Pick. 224; Stephenson v. Hall, 14 Barb. 222. Hodgkins v. Rockport, 105 Mass. 475, does not support the position for which it is cited by plaintiff. By the law of that State.