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PUBLIC OR PRIVATE SCHOOLS-STATE NORMAL SCHOOLS
PUPILS STREET OR ELEVATED RAILWAY COMPANIES
SPECIAL RATES.

Pupils in State normal schools are not entitled to the benefits of R. L., c. 112, § 72,
as amended by St. 1906, c. 479, providing that "the rates of fare charged by
street or elevated railway companies for the transportation of pupils of the
public or private schools
shall not exceed one-half the regular fare
charged by such street or elevated railway company for the transportation of
other passengers."

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Board of

The State Board of Education ask my opinion upon the To the State following question: "Are the pupils in our State normal schools Education. entitled to the benefits of chapter 479, Acts of 1906?"

1906 December 19.

The statute above referred to was first enacted in Acts of 1900, chapter 197. This statute was embodied in R. L., c. 112, § 72, which is as follows:

The rates of fare charged by street or elevated railway companies for the transportation of pupils of the public schools between a given point, from or to which it is necessary for them to ride in travelling to or from the school houses in which they attend school and their homes, whether such school houses are located in the city or town in which the pupils reside or in another city or town, shall not exceed one-half the regular fare charged by such street or elevated railway company for the transportation of other passengers between said points, and tickets for the transportation of pupils as aforesaid, good during the days when said schools are in session, shall be sold by said companies in lots of ten each. A railway company which violates the provisions of this section shall forfeit twenty-five dollars for each offence.

By Acts of 1906, chapter 479, this latter provision was amended by the insertion of the words "or private" at the end of the second line, so that the provision of law was applicable to the "transportation of pupils of the public or private schools."

The term "public schools" may be considered as synonymous with "common schools," and as so used its meaning is well settled. So it has often been defined in connection with the Constitution, Article of Amendment XVIII. :—

All moneys raised by taxation in the towns and cities for the support of public schools, and all moneys which may be appropriated by the

state for the support of common schools, shall be applied to, and expended in, no other schools than those which are conducted according to law, under the order and superintendence of the authorities of the town or city in which the money is to be expended; and such money shall never be appropriated to any religious sect for the maintenance, exclusively, of its own school.

In the case of Merrick v. Amherst, 12 Allen, 500, 508, it was said by Chief Justice Bigelow:

The phrases "public schools" and "common schools" have acquired under the legislation and practice of this State a well-settled signification. They are never applied to the higher seminaries of learning, such as incorporated academies and colleges. These, in a certain broad and comprehensive sense, are public institutions, because they are controlled by corporations, and are usually open to all persons who are willing to comply with the ter is of admission and tuition. But the broad line of distinction between these and the "public or common schools" is, that the latter are supported by general taxation, that they are open to all, free of expense, and that they are under the immediate control and superintendence of agents appointed by the voters of each town and city.

And again, in Jenkins v. Andover, 103 Mass. 94, 99, the court in speaking of public and common schools, said:

-

These are the schools to which the eighteenth article applies, - schools which towns are required to maintain, or authorized to maintain, though not required to do so, as a part of our system of common education, and which are open and free to all the children and youth of the towns in which they are situated, who are of proper age or qualifications to attend them, or which adjoining towns may unite to support as a part of the same system. . . . This class of schools does not include private schools which are supported and managed by individuals; nor colleges or academies organized and maintained under special charters for promoting the higher branches of learning, and not specially intended for, nor limited to, the inhabitants of a particular locality.

It appears, then, that the term "public schools" as used in the Constitution of the Commonwealth, and as used in subsequent acts of the Legislature, refers and is limited to schools forming a part of the general system of education for the children and youth of the Commonwealth, such schools as, on the

one hand, cities and towns are required to maintain for educational purposes, and, on the other hand, children are required to attend in order to obtain what is sometimes called "a common-school education."

It is clear, therefore, that the term "public schools" is applicable to those schools established and maintained by the public, at which the attendance of pupils is required and is not applicable to colleges or academies organized and maintained for promoting the higher branches of learning, or to textile schools or other institutions established and maintained for the purpose of instructing voluntary pupils in certain specific branches of education, mechanical or industrial, which do not form a part of the general system of education which the law requires to be maintained by cities and towns. See Hanscom v. Lowell, 165 Mass. 419.

I am of opinion that so far as relates to the present question the interpretation of the statute is not affected by the addition of the words "or private," contained in the amendatory act (St. 1906, c. 479), since it is obvious that it was the intention of the Legislature to confer a benefit only upon such pupils of private schools as are in process of obtaining an education, similar to and in substitution for that which cities and towns must furnish in their common or public schools; and that it was not intended to include institutions established for the purpose of instruction in the higher branches of learning, or in various mechanical or industrial branches either under the control of private individuals or of the Commonwealth.

The status of students at a State normal school must, therefore, in my opinion remain unaffected by the amendment of 1906, and if such students are entitled to benefit at all by the provisions requiring street railways to carry pupils at half rates, it must be under the provision as contained in R. L., c. 112,

72. This is the more obvious because in no sense can a normal school maintained by the Commonwealth for the benefit of its citizens and at the public expense be considered a private school. See Merrick v. Amherst, supra; Hanscom v. Lowell, supra.

To the
Massachusetts
Highway
Commission.

1906

December 24.

It remains, therefore, to consider whether or not a State normal school is in any sense a public school within the meaning of that term as used in the Constitution and statutes of the Commonwealth. It is true that the State Board of Education is vested with the general management of State normal schools, and may expend the money appropriated for their maintenance (see R. L., c. 39); and being so maintained, they are undoubtedly public institutions. But the preparation of persons for the profession of instruction in common schools not being an essential part of the common-school system which the municipalities or the Commonwealth are required to maintain, in my opinion they are not public schools within the meaning of the statute. I am therefore obliged to answer the question in the negative.

AUTOMOBILES
POSTING SIGN BOARDS
COMMISSION.

Under the provisions of St. 1903, c. 473, § 8, as amended by St. 1905, cc. 311 and
366, and by St. 1906, c. 412, which enacted that local authorities "may make
special regulations as to the speed of automobiles and motor cycles and as to
the use of such vehicles on particular roads or ways, including their complete
exclusion therefrom. . ." a regulation adopted by the selectmen of a town
restricting the speed of automobiles and motor cycles upon the streets of the
thickly settled portion of such town to nine miles per hour is a special regula-
tion; and, in the absence of protest as therein provided, it becomes the duty
of the Massachusetts Highway Commission to post such regulation conspicu-
ously on sign boards at such points as the commission may deem necessary.

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CITIES AND TOWNS

SPECIAL REGULATIONS MASSACHUSETTS HIGHWAY

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In a communication dated October 25 you state that the selectmen of the town of Harwich have duly adopted and published, as required by law, the following speed regulation relating to automobiles:-

The selectmen of Harwich have restricted the speed of automobiles and motor cycles upon the streets in the thickly settled parts of said Harwich, to nine miles per hour. Said restriction is made under the Acts of 1903, chapter 473, as amended by chapters 311 and 366 of the Acts of the year 1905, and chapter 412 of the Acts of the year 1906.

You inquire whether in my opinion such regulation is a special regulation within the meaning of the statute therein

cited, and whether in the absence of protest the commission is required to erect speed signs on all roads located within the thickly settled portion of the town of Harwich.

St. 1903, c. 473, § 8, established a speed limit of fifteen miles an hour outside the limits of a city or the thickly settled portion of a town or fire district, and of ten miles within a city or the thickly settled or business part of a town or fire district. This section was amended by St. 1906, c. 412, which repealed so much of the section as established a speed limit, by providing that:

Every person operating an automobile or motor cycle on any public or private way laid out under the authority of law shall run it at a rate of speed at no time greater than is reasonable and proper, having regard to traffic and the use of the way and the safety of the public.

The amendment then proceeds to establish rates of speed which shall be prima facie evidence that the operator is running his machine at a rate of speed greater than is reasonable and proper in the premises, such limits being twenty miles outside "the thickly settled or business part of a city or town" and twelve miles within such town. On curves and crossings, the speed which shall be prima facie unreasonable speed is eight miles. In section 2 the act construes the phrase "thickly settled or business part of a city or town," as follows:

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The phrase "thickly settled or business part of a city or town", in section one of this act shall be deemed to mean the territory of a city or town contiguous to any such way which is built up with structures devoted to business, or the territory of a city or town contiguous to any such way where the dwelling houses are situated at such distances as will average less than two hundred feet between such dwelling houses for a distance of a quarter of a mile or over.

By St. 1905, c. 366, the city council of a city or the board of aldermen of a city having no common council, and the select

men of a town

may make special regulations as to the speed of automobiles and motor cycles and as to the use of such vehicles on particular roads or ways, including their complete exclusion therefrom. If they determine that

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