Opinion - Graham

HARVEY, J. (concurring in part, dissenting in part): I concur in the judgment rendered and in the conclusion reached in the first paragraph of the syllabus. My views respecting the question ruled upon in the second paragraph of the syllabus may be stated as follows: Counsel argue we should determine the specific thing the legislature had in mind by its use of the words "high school" in chapter 414, Laws 1905, now G. S. 1935, 72-1724, and the evidence and argument center around what constituted a high school in 1905. The act of 1905 specifically amended chapter 81, Laws of 1879, which specifically amended section 75 (art. V), chapter 18, General Statutes of 1868. This was a comprehensive act relating to cities of the first class, article V of which created boards of education for such cities and prescribed their powers and duties. This section reads:

"The board of education shall have power to select their own officers; make their rules and regulations, subject to the provision of this act; to organize and maintain separate schools for the education of white and colored children; to establish a high school whenever, in their opinion, the educational interests of the city demand the same; and to exercise the sole control over the public schools and school property of the city."

If this court is to determine what the legislature meant by the words "high school" the time of such determination should be 1868 rather than 1905. Respecting authority of the board of education to maintain separate schools for white and colored children this statute of 1868 has been amended but twice--in 1879, when the authority of such boards of education to maintain separate schools for white and colored children was taken away as to high schools; and in 1905, when that authority was granted to Kansas City, Kan., but specifically withheld in all other cities.

Neither the evidence nor the argument in this case pertains to what the legislature must have had in mind by the words "high school" in 1868. The statute above quoted authorized the board of education to organize and maintain schools and to establish a high school whenever in the opinion of the board of education the educational interests of the city demanded it.

During all the time since 1868 the defendant board of education has had statutory authority to organize and maintain the city schools. The statute has not at any time specified how pupils shall be classified or graded, or what departments shall be used, or what classes or grades shall constitute the high school, if one is maintained. All these matters were left to the board of education. (See Board of Education v. Welch, 51 Kan. 792, 804, 33 Pac. 654, decided in 1893.) At that time defendant was maintaining four departments--a primary department, an intermediate department, a grammar school department, and a high school department. This last started at what defendant had classified as the ninth grade. When that system of classification and of departments was started, and when defendant ceased using it, is not shown in this record and may not be important except as it helps to demonstrate that no statute required the use or the disuse of such a classification. The board of education, with the aid of its superintendent, principals and teachers, made such classes, grades and departments as it deemed best. Had it started its high school at the seventh grade, as it graded students, it would have been within its rights under the law. It may be worth noting that in the 1870's and 1880's classes or grades of the common schools were built around the readers used (see pp. 6-16, Report of State Superintendent, 1871), and usually consisted of five grades, and in 1886 (Laws 1886, ch. 147), when the first general statute authorizing county high schools was enacted it was provided, in section 12, that no person should be admitted to such high school who had not passed a satisfactory examination in the work of the district schools of the county in which the high school was situated. The county high-school system became the bulwark of the high-school education of the state. (Report State Superintendent, 1923-1924, p. 7.) So to start a high school at even as early as the sixth grade was neither unheard of nor unlawful.

In 1925 the legislature passed an act (Laws 1925, ch. 240, now G. S. 1935, 72-40a01) which reads:

"Any board of education or board of any school district in this state is hereby authorized to provide for an intermediate school or junior high school, which shall be called a 'junior high school,' and which shall include two or more of the first three years immediately following the first six years of school instruction. The state board of education is authorized and directed to prescribe a course of study for each year of such junior high school and provide regulations for teaching therein, and the state schoolbook commission is hereby authorized and directed to approve or adopt suitable textbooks therefor."

Defendant was familiar with that act. Its superintendent testified that he wrote the law. It authorized this defendant and other school boards to provide junior high schools, and directed the state board of education to prescribe the courses of study for such high schools and the regulations for teaching therein, and directed the state textbook commission to approve and adopt the textbooks therefor. Defendant, having already experimented somewhat with this type of school, voluntarily took advantage of this statute and remodeled its school structure so as to provide such high schools for all the white children of the city, but not for the colored children.

I am impressed with the thought that defendant cannot organize a type of high school, specifically authorized by statute, where the courses of study and regulations for teaching are directed and supervised by the state board of education, and then be heard to say it is not a high school, or be heard to say it is a high school for white children only. I therefore dissent from the rule stated in paragraph 2 of the syllabus.