Opinion
MARCH TERM 1861
The trustees of a school district may, subject to the control of the district meeting, lawfully permit the district school-house to be used, out of school house, for the purpose of private instruction in vocal music of the district scholars and others residing in the district; and it is no objection to such use that the teacher is compensated by private subscription or otherwise.
BY permission of the trustees of school district No. 1, in the town of Barrington, private instruction in vocal music was given by Mr. Christopher Roffee, out of school hours, in the district school-house; his scholars paying him a compensation therefor. At a special meeting of the tax-paying voters of the district, held pursuant to notice to act upon the subject, on the 3d day of February, 1860, it was moved, "that the district school-house be used for no other purpose than a public school-house, and district purposes;" but the motion was negatived. From this decision, John W. Barnes, a voter in said district who voted for the motion, appealed to the school commissioner, on the ground, that a district school-house could not be used for any purpose not connected with public education, without the general consent of the tax-paying voters of the district, and requested, that the commissioner would lay a statement of the facts before one of the judges of the supreme court.
I concur in the decision of the school-commissioner that this appeal must be dismissed.
By the Revised Statutes, ch. 65, § 1, the custody of the district school-houses and other district property is confided to the trustees of the districts; and the question submitted is, in substance, whether the trustees of district No. 1, in Barrington, by permitting a private teacher of vocal music to give instruction in his art in the district school-house, out of school hours, have exceeded their authority, or violated their trust. Our school system, with all the intellectual and material means for instruction provided by it, was designed to promote public education; and any use of the school property tending to this end, and which does not interfere with the regular schools, may be permitted by the trustees of a school district, as within the spirit of their trust. It is evident, that this power of the trustees, must, to answer its purpose, be in some degree discretionary and obedient to circumstances; and it certainly should not be interfered with, either by the district, or on appeal, by the commissioner, except when exercised in a manifestly improper manner. It is true, that the principal expense of the education contemplated by the school law is paid out of funds furnished by the state and raised by town and district taxes; but it is a mistake to suppose that these are the only means which the law employs to carry out its large design. By the six last sections of ch. 64 of the Revised Statutes, rates of tuition are provided, to be paid by those attending school, or by their parents, employers, and guardians; and by the 14th section of the same chapter, the trustees of a district may prescribe and collect a rate, in their discretion, sufficient to keep the school for the four months required by law, without any vote of the district.
In the appeal of Isaac Hall, decided in 1853 by Ch. Just. Greene, after consultation with Justices Haile and Brayton, the conclusion come to, was, that a district school-house might be used "for educational purposes collateral to the main purpose; such as, meetings of the district for school business, lectures upon literary and scientific subjects, debating societies for the people or children of the district," c.; and they approve the above language of the then commissioner, Hon. E.R. Potter, in giving his decision on that appeal.
This opinion certainly includes, as within the power of the trustees and the district, the right to license the use of a district school-house, for private instruction, out of school hours, in vocal music. Instruction in this art, is quite commonly furnished in our public schools, to enable the children to join in an exercise always agreeable to them, and to fit them to participate in one of the ordinary acts of public devotion. The use of the school-house, when not needed for the regular course, that the like instruction may be imparted to the scholars and others of the district, so that the knowledge and taste of all in this excellent accomplishment may be promoted, is quite in accordance with the uses to which such property, is appropriated by law; and the last objection which a friend of public education should make to such a use is, that the people of the district are so desirous of such instruction, that they are willing to pay for it themselves.