thus provided, the Legislature has made provisions for the support of the common schools, and enacted rules for the general management by officers to be elected by the voters of the locality where the schools are to be maintained.

66

In view of the numerous provisions made by the general government and the Constitution of this state as well as the history of its legislative enactment, for the establishment and maintenance of a common school system under which the children have been educated for the past 40 years, the suggestion that such schools are not free comes as a surprise at least. This, however, cannot change the provisions of our Constitution, and it is to such provisions we must look to determine whether the system of common schools it commands the Legislature to encourage was to be a system of free common schools or pay common schools. We can only determine this by ascertaining what was meant by the words common schools," as therein used. If we find that they have acquired a technical meaning, we must assume that they were used in the Constitution in their technical sense. The high school in cities of the second class is a department of the common school system of such a city, in which the higher grades of the common school are taught. Board of Education v. Welch, 51 Kan., 792, 33 Pac., 654; Whitlock v. State ex rel. School District, 30 Neb., 815, 47 N. W., 284. The phrase common schools is synonymous with "public schools." Jenkins v. Andover, 103 Mass., 94. Both have been defined by lexicographers and by judicial interpretation to mean free schools." Merrick and others v. Inhabitants of Amherst and others, 12 Allen, 509; Roach v. The Board of President and Directors of the St. Louis Public Schools, 77 Mo., 484; Collins v. Henderson, etc., 74 Ky., 74; Irvin Gregory (Ga.), 13 S. E., 120 Roach v. Board of President and Directors of the St. Louis Public Schools, 7 Mo., App., 567; People v. Board of Education of Brooklyn, 13 Barb., 400. In 25 Am. and Eng. Encyc. of L., it is said: "Common or public schools are, as a general rule, schools supported by general taxation, open to all of suitable age and attainments, free of expense, and under the control of agents appointed by voters." Mr. Black, in his Law Dictionary, defines common schools to be "schools maintained at the public expense and administered by a bureau of the state, district, or municipal government, for the gratuitous education of the children of all citizens without distinction." Mr. Anderson, in his Law Dictionary, says: "Common or public schools are schools supported by general taxation, open to all free of expense, and under the control of agents appointed by the voters." Repalje and Lawrence define common schools to be "public or free schools, main

66

tained at public expense, for the elementary education of children of all classes." Mr. Bouvier, in his Law Dictionary, says that common schools are schools for general elementary instruction, free to all the public." Chancellor Kent, in his Commentaries, vol. 2, p. 195, in discussing free common schools in the several states of the Union, on the continent, and in many European countries, uses the phrase "common schools" exclusively. It must be assumed that the men who wrote our Constitution used the phrase "common schools in its technical sense, as we find it defined. We think it follows, therefore, both from authority and reason, that the phrase "common schools was used in the Constitution in its technical sense, which means free schools, and that the common schools of Kansas are free schools. The act of the Legislature attempting to authorize boards of education of cities. of the second class to collect tuition fees for the admission of resident pupils into such schools violates this provision of the Constitution of this State, and is therefore void.

A contention is made that the word "otherwise," found in the latter part of section 3, art. 6, of the Constitution by which the legislature is directed to add to the permanent school fund by taxes or otherwise, is an express authority to add to it by charging a tuition fee. The word "otherwise," as there used, simply means that the Legislature may set apart for public school purposes such moneys as may come into the public treasury incidentally, such as fines imposed for violation of laws of the State, and items of a similar character. To charge and collect a tuition fee would not be adding to the permanent school fund.

The objection that the plaintiffs cannot maintain this action, on the ground that an individual cannot maintain an action to restrain public officers from performing a public duty, unless such party can show some personal, pecuniary, or special interest, or some injury which he may sustain other than the public generally, cannot be sustained. The exclusion of the plaintiff's children from the public schools is a question in which they have a special and peculiar interest, not held in common by the people of the state. While the people of the state and county have a general interest in the education of its children, the exclusion of any particular child directly affects the parents of that child in a much greater degree than it does the public. In Craft v. Jackson Co., 5 Kan., 518, 521, it is said: "If the injury is one that particularly affects a person, he has his right of action."

The judgment of the court below is affirmed. All the Justices concurring.

II. HOW FAR THE PUBLIC HIGH SCHOOL IS A JUST CHARGE UPON THE PUBLIC TREASURY

[Extracts from address by Frank A. Hill, secretary of the Massachusetts State Board of Education, before the New England Association of Colleges and Preparatory Schools at Springfield, Oct. 15, 1898.]

I have been asked to answer the question, " How far is the public high school a just charge upon the public treasury?" I shall have to limit my answer to Massachusetts, although, in the nature of the case, whatever answer may satisfy Massachusetts is likely to serve, in some measure, other States as well. . . .

I will not discuss the justice of making education in general a charge upon the public treasury. For two centuries and a half Massachusetts has clung most tenaciously to two fundamental thoughts about this matter. One is that every child-the humblest as well as the proudest - is entitled to a fair education. Nay, he is not simply entitled to it, but the State must see that he has it. And the other is that the cost of this education is a legitimate public charge. Under stress of poverty or war Massachusetts has wavered at times in application of these principles, but never in loyalty to their essence. They are deeply intrenched in the universal conviction; they have found splendid expression in the supreme law; they are woven as unbroken strands into the substance of her history. Indeed, it is idle to make a show of defending a citadel that is a Gibraltar in itself and that no enemy of consequence now attacks.

When we leave education in general and think of secondary education in particular, we shall have to say that, so far as legal or technical justice is concerned, the high school tax as well as the general school tax is a just charge upon the public treasury. That is to say, there has never been a time since 1647 when the laws of Massachusetts did not require certain towns to maintain at public expense grammar schools, i.e., college preparatory schools, or their modern equivalents or successors popularly known as high schools. It has not been simply the legal right of these towns to tax themselves for the support of secondary schools, but it has been their legal duty to do so; and towns were not rarely presented," as the old records run, and fined for failure to discharge this duty.

And when Massachusetts became a State the people took pains to clinch this policy of colonial and provincial times by putting

into the Constitution these words: "It shall be the duty of legislatures and magistrates, in all future periods of this Commonwealth, to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools and grammar schools in the towns." In other words, the ancient and historic grammar schools that taught Latin, Greek and mathematics, with such minor variations in the curriculum as the people saw fit to make, and that were supported at public expense, were specifically mentioned by the people in that "solemn and mutual agreement" as schools which legislatures are constitutionally bound to cherish. In response to this duty, imposed upon them by the supreme law, our Legislatures have again and again made requirements relating to grammar or high schools, while the towns, within the realm of local control, have, in numerous instances, gone far beyond the letter of such State requirements.

And when now and then conservative, skeptical or intractable persons have questioned the liberal action of the towns. toward high schools, and have applied to the courts to restrain them in such action, the highest judicial authority has invariably stood for the larger, the more generous interpretation of the high school policy of the State. So that the justice of the high school tax, if we consider simply such questions of legality as are settled by the Constitution, the laws and the decisions of the courts, rests on the solidest of rock.

*

The relation of any tax to the people's ability to pay it, under our form of government, is dependent on the people's willingness to pay it; and this willingness, in its turn, is dependent on the people's intelligent appreciation of the benefits the tax is supposed to bring. The tax should not be so heavy as to check production, to devour income, to extinguish ambition, in short, to kill the goose that lays the golden egg; but what its basis shall be, just what percentage of this basis shall constitute the tax, how the tax shall be distributed among the various purposes it should serve, how each portion of it shall be expended, these, with scores of allied matters, are always likely to be open questions. In their nature they do not admit of exact, complete and final answers. It is not what people casually say that must be taken as their true answers to these questions but what they directly or through their representatives actually vote for. When the Legislature in 1824 voted to exempt nearly every town in the State from maintaining a high school, this meant that, in the popular

judgment of that time, the high school was an institution of so great expense and so limited service that only the largest and wealthiest towns ought to be required to maintain it. When the Legislature in 1891 ordered that every town should be required to provide its properly qualified children with free high school tuition, this meant that, in the popular judgment of that time, high school education was of so great and general value that, notwithstanding its expense, no child ought to be denied free access to it. In short, our people are doing far more for education to-day than in 1824, and yet they are doing it more easily. The voice of the grumbler, I suppose, will never cease, but it is less often heard to-day than then. Here and there, indeed, we see a town that is pitifully burdened, paying double or quadruple the school tax of its wealthier neighbors and yet powerless to command the schooling it ought to have. Such unevenness, whether of burdens or of results, is regrettable; the State does something to reduce it and should do more. Still the inequalities are not what they once were under the vicious district school system. It may be safely said that, whatever defects of taxation need to be remedied, the people as a whole are not excessively taxed.

Not only are there ample reasons, in theory, why the public should value and support the high school, but there are ample evidences in fact that these reasons are mighty with the public. Consider for a moment the rise of the high school and its present remarkable hold on the loyalty of the people. Our educational history shows in the spirit of the people the golden era, the dark ages and the renaissance, the golden age in the beginning, the renaissance in our own time and the dark ages between. There was the action of the Colony of Massachusetts Bay in 1647, ordering that towns of 100 families should each maintain a grammar school, that is, a college fitting school. It was Latin grammar and Greek, not English, that it taught. English grammar, as we understand it, was hardly known. It is a significant fact that the golden age of English literature was a grammarless age; the art flourished, the science slept. In 1677, Plymouth Colony said that towns of 50 families may, and towns of 70 families must, keep a grammar school. The next important legislation was in 1789. People had been living through a hard century. It was becoming more and more trying for the towns to comply with the law. Many of them had ceased to do so. Accordingly the General Court relaxed the grammar school law of 1674. It ordered that thereafter towns not of 100 families but of 200 should main