Hendricks.43 The O'Connor case, however, held that the State Superintendent of Public Instruction could prohibit the wearing of religious garb, and that failure to obey his order forfeited any further salary because the influence of such apparel is distinctly sectarian.

held

Creyhon v. Board of Education, that graduates of parochial schools could be compelled to take examinations to enter High School even when they, to the satisfaction of the court, had been shown to have done the same work as done in the public schools, whose graduates were admitted without examination by statute.

"The determination of the matter is a function of the school authorities, and its correctness, if arrived at by the exercise of their fair and candid judgment, is not open to judicial review. "45

McCormick v. Burt held that a public school teacher was not liable in damages. for expelling one Edward McCormick, a member of the Catholic Church, for refusing to stop studying while she read the bible for fifteen minutes as required by the school board, on the grounds that she was merely carrying out orders of her superiors and acted without malice.

THE MICHIGAN CASE

The newest capstone on this phase of our public law is the case of "Alice Tanton, by Dorothy Tanton, her next friend, v. Charles McKenney, President, and Bessie Leach Priddy, Dean of Women, of the Michigan State Normal School," recently argued before the entire bench of the Michigan Supreme Court.

Alice Tanton, eighteen years old, was one of the seventeen co-eds expelled from the Michigan State Normal College at Ypsilanti, Mich., in the spring of 1922, for alleged "social indiscretions." The principal charge against Miss Tanton was that

(43) 184 N. Y. 421.

(44) 99 Kan. 824.

(45) It is only fair to point out, however, that graduates of parochial schools here were held eligibie for admission to high school without examination because the school authorities themselves had admitted them to be as well prepared as the public school children.

(46) 95 Ill. 263.

of cigarette smoking. She first learned of the school's action when her father cut off her allowance, following the receipt of a notification from Mrs. Priddy that his daughter had been barred from the college.

An appeal for reinstatement failing, Miss Tanton began mandamus proceedings in the Washtenaw County Circuit Court, where the case came before Hon. George W. Sample, Circuit Judge, in September, 1922. Her petition for a writ of mandamus was denied. Miss Tanton's attorney charged that the school authorities sought to set up a double standard, and were seeking to make a requirement of girls that they do not make for boys." The appeal was heard on January 9, 1924, and the decision, written by Fellows, J., handed down March 5, 1924.

The trial judge found the facts to be that:

"Plaintiff (Miss Tanton) had become. addicted to the smoking of cigarettes before coming to the institution and continued their use there; that she smoked cigarettes on the public streets of Ypsilanti; that she rode around the streets of Ypsilanti seated on the lap of a young man and that she was guilty of other acts of indiscretion; and that she aired her grievances and her defiance of disciplinary matters in the public press.

The court made short work of counsel's claim of error because he was not allowed to introduce evidence that some male students and professors at the University smoked, saying:

"This testimony was rejected by the trial judge, and correctly rejected. The rules of discipline at the University might be entirely inappropriate for an institution having as students over fourteen hundred young girls of tender years. This brings us to the meritorious questions of whether defendants have the power here exercised and whether there has been an abuse of such power."

It was found that:

"There has been no abuse of discretion,

no arbitrary action on the part of the defendants or either of them."

The mere fact that Miss Tanton ran to the newspapers with her troubles, in the view of the court,

"of itself was sufficient grounds for refusing her readmission '47 and a rather high compliment was paid Mrs Priddy, now Dean of Women at the University of Missouri, when the court says:

"Instead of condemning Mrs. Priddy she should be commended for upholding some old-fashioned ideals of young womanhood."

The fact that Miss Tanton was attend

ing a state normal college may have caused the court to regard her conduct with more severity because:

"As is well known, the Michigan State Normal College is maintained at the expense of the tax-payers to prepare teachers for our public schools. The student body is made up almost entirely of young women who have chosen teaching as their profession. They are required to sign a 'Declaration of Intention' couched in the following language:

"We, the subscribers, do hereby declare that it is our intention to devote ourselves to the business of teaching in the schools of this state, and that our sole object in resorting to this normal school is the better to prepare ourselves for the discharge of this important duty.'"

Ruling Case Law is quoted by the Court:

"** The courts are usually disinclined to interfere with regulations adopted by school boards, and they will not consider whether the regulations are wise or expedient, but merely whether they are a reasonable exercise of the power and discretion of the board."

"The presumption is always in favor of the reasonableness and propriety (47) Wayland v. Hughes. 43 Wash. 441, was cited for this proposition. It would seem. however, that Wayland v. Hughes, discussed supra, might be distinguished upon the ground that there is a difference between writing a chapter letter for the national publication of secret fraternity and medium of the press.

a

The Dresser,49 Wilson, 50 and Pugsley cases are quoted, together with the recent case of Finch v. Fractional School District,52 a Michigan case. The Dresser case53 is authority for the rule that:

"School authorities have the power to suspend a pupil for an offense committei outside of school hours and not in the presence of the teacher, which has a direct and immediate tendency to influence the conduct of other pupils while in the school room," or "to set at naught the proper discipline of the school."

The Wilson case54 says that:

"The rules and by-laws necessary to the proper conduct and management of the schools are, and necessarily must be, left to the discretion of the board and its acts will not be interfered with nor set aside by the courts unless there is a clear abuse of the power and discretion conferred."

And the Pugsley case, as we have seen, says that:

"The question, therefore, is not whether we approve this rule as one we would have made *** nor are we required to find whether or not it was essential to the maintenance of discipline."

In other words, the Arkansaw court will allow school masters to make ANY rule, "unless we find that the directors have abused their discretion, and that the rule is not one reasonably calculated to effect the purpose in the school."

Whether or not one agrees that an eighteen-year-old girl should be expelled from school, with the lifelong stigma that necessarily attaches to such a fate, merely because she used powder on her face, it does seem that the Arkansaw court has (48)

24 R. C. L. 575.

gone a long way when they hand down a decision as sweeping in its terms as this one. It would seem that the rule has been broadened to such an extent that it is of little practical value to possible petitioners.55

Granting that the circumstances in this particular Michigan case warranted the dismissal of Miss Tanton, and that the procedure was proper and regular, does it not seem that by adopting the sweeping statements of the Pugsley case the Michigan court has broadened the rule of "discretion" to such an extent that it is of little real value to students seeking relief in the future?

WHAT IS "REASONABLE?"

That school authorities have, and must have, wide discretionary powers to conduct their duties properly will be readily admitted, but it is the "extreme" cases that bring up the question "What is 'reasonable' discretion?"

In referring to the Pugsley case Justice Fellows says:

"In that case petitioner had been expelled for the violation of a rule against the use of cosmetics. In denying the writ of mandamus to compel her reinstatement it was said:

"The question, therefore, is not whether we approve this rule as one we would have made as directors of the district, nor are we required to find whether or not it was essential to the maintenance of discipline. On the contrary, we must uphold the rule unless we find that the directors have abused their discretion, and that the rule is not one reasonably calculated to effect the purpose in the school; and we do not so find.

"Courts have other and more important functions to perform than that of hearing the complaints of disaffected pupils against the rules and regulations promulgated by the school boards for the government of the schools. The courts

(55) The authority of the Pugsley case is weakened by the fact that it was really nothing more than a three to two decision. See discussion post.

have this right of review, for the reasonableness of such a rule is a judicial question and the courts will not refuse to perform their functions in determining the reasonableness of such rules, when the question is presented. But in so doing it will be kept in mind that the directors are elected by the patrons of the schools over which they preside, and the election occurs annually. These directors are in close and intimate touch with the affairs of their respective districts and know the conditions with which they have to deal. It will be remembered also that respect for constituted authority and obedience thereto is an essential lesson to qualify one for the duties of citizenship, and that the school room is an appropriate place to teach that lesson; so that the courts hesitate to substitute their will and judgment for that of the school boards which are delegated by law as the agencies to prescribe rules for the government of the public schools of the state, which are subported at public expense."

The facts of the Pugsley case these:

were

On the opening day of school, in September, 1921, N. E. Hicks, the principal, read certain rules which had been adopted by the Board of Directors and announced that observance of them would be requirel of all pupils. Among these rules was number three, which reads as follows:

"The wearing of transparent hosiery, low-necked dresses, or any style of clothing tending toward immodesty of dress, or the use of face paint, or cosmetics, is prohibited."

Appellant, Miss Pearl Pugsley, came to school with powder on her face, which the teacher compelled her to wash off, and was told that she could not return to school with powder on her face. Miss Pugsley refused to submit to the condition imposed and started suit to compel her admittance to the school.

Justice Hart, whose dissenting opinion

follows, seems to take a more reasonable view of the squabble. He wrote:

"Miss Pearl Pugsley was eighteen years old on the 15th of August, 1922. I think a rule forbidding a girl of her age from putting talcum powder on her face is so far unreasonable and beyond the exercise of discretion that the court should say that the Board of Directors acted without authority in making and enforcing it. 'Useless laws diminish the authority of necessary ones.' The tone of the majority opinion exemplified the wisdom of this old proverb.5

56

It is also well to note that Justice Humphries concurred only because:

"A proper showing has been made to this court that the rule complained of was rescinded after this appeal was perfected. The question is therefore moot.57

That the Michigan court would go so far as to hold that it was within the "discretion" of a school board to refuse an eighteen-year-old girl admittance to a public high school simply because she put talcum powder on her face is doubtful.58 But at all events, the Michigan court has placed itself squarely behind the rule that school authorities have unlimited power over their students, both in and out of the class-room, and may make and enforce any rules or regulations that they see fit to promulgate without interference from the courts save where such rules or orders are "unreasonable." In short, school authorities are bound only by the "Rule of Reason," and in the determination of what is "reasonable," the courts, at least in Michigan, will not interfere with the acts of school boards or administrative heads unless there is a clear abuse of discretion, or a violation of law. "59

*

MASTER AND SERVANT-SALESMAN ON

COMMISSION

DARE v. BOSS

224 Pac. 646

(Supreme Court of Oregon, April 8, 1924)

In an action for injuries sustained by plaintiff when struck by an automobile being demonstrated by a salesman to a prospective purchaser, whether the relation of master and servant existed between the salesman and defendant held for the jury.

Action by James C. Dare against C. L. Boss and R. J. McRell, partners, doing business as the C. L. Boss Automobile Company, and Sam Little, and another. Judgment for plaintiff, and named defendants appeal. Reversed, and new trial directed.

This is an action brought to recover of the defendants on account of injuries received in a collision with an automobile driven, as alleged, by defendant company's agent, and the substance of the complaint is as follows: It is charged that defendant Sam Little, as an employee of the defendant company, among other duties he performs, acts as salesman in the disnosal of automobiles and takes prospective buyers out who desire to purchase automobiles and demonstrates the qualities of the automobiles which the defendant company is engaged in selling. It is alleged that Pridgeon was a prospective purchaser of an automobile from the defendant company, or that he was in the emloyment of the company, the exact nature of their relationship being unknown to plaintiff. In a separate paragraph it is alleged that at the time of the injury set forth in the complaint defendants Little and Pridgeon were the employees and agents of the Boss Automobile Company and that all of the acts set forth in the complaint were done for the Boss Automobile Company and done as agents and employees thereof. It is further alleged that on the 16th day of July, 1921, plaintiff was driving southerly towards Portland on the Portland nd Astoria Highway in his automobile and when at a distance of probably a mile north of Linnton he met with an accident which compelled him to stop his machine to make repairs thereon; that for the purpose of making the repairs he pulled his automobile to the west side of the road as far as the condition of the highway would permit, and his automobile was so situated that any person approaching from