Commonwealth ex rel.v Jas. A. McCauley et al.
Court of Common Pleas of Pennsylvania, Cumberland County.
Sadler P. J.
The relator, in the petition filed, sets forth that Dickinson College is a corporation duly
chartered by the Commonwealth of Pennsylvania for the education of youth, and alleges
also that he is a citizen of said state and over twenty-one years of age, and was, after a
satisfactory examination into his qualifications and the payment of the required fees,
admitted into the said institution of learning. That, although he has at all times been
studious and orderly and obedient in all things that nevertheless on the sixteenth day of
November last, the faculty of the college resolved that his continuance therein would be
prejudicial to its good order and the best interests of its students, and that he be dismissed
therefrom. He avers that he is wholly innocent of the charges made against him; that no
witnesses were brought before the said faculty; that none of their own number testified
before them as to his guilt, nor did he make any confession thereof, nor was he offered
any opportunity to be heard in his own defence, and that his conviction was not had in a
proper manner. He further states that he has no appeal and prays that a writ of mandamus
be awarded for his reinstatement.
To the rule granted, upon his petition, to show cause why an alternative writ should not
issue, an answer has been filed by the respondents in which they insist that their
determination was made after a careful investigation of the facts and the course of
procedure in accordance with the customs and usages of the college.
On the hearing, after return of the rule, two subjects of contention arose. First, whether
the answer of respondents should be considered in disposing of the rule, in the same
manner as the return to an alternative writ of mandamus; or whether the petition should
alone be examined in making the preliminary inquiry whether the case was one in which
an alternative writ should be allowed. And, secondly, if the petition was alone to be
considered, did it set forth such a state of facts as entitled the relator to an alternative
The courts have exercised great caution in the granting of this writ. Indeed the power was
not given to the courts of common pleas until the year 1836 to issue it. Before that it had
been exercised solely by the Supreme Court. The hesitation in allowing the writ no doubt
led to the practice of granting a rule in order that opportunity might be given for a more
minute inquiry into the application on which it was requested. We believe this inquiry is
to be limited to what appears in the complaint of the person seeking the writ. It is not
competent, at this stage of the proceedings, to examine into the merits of the controversy,
which may be raised by the answer which respondents may have filed. The 21st section
of the Act of June 14, 1836, provides when, and in what manner, issues of fact arising
may be settled. The court has not, upon the return of the rule and answer filed, power to
pass upon the affirmations on one side and denials on the other, nor to award an issue to
try disputed facts. The parties did not agree that the rule and answer should be treated as
an alternative writ and return, and the disputed facts disposed of by reference to a
competent tribunal. Again, it would be improper to discharge the rule merely because the
statements in the petition are denied by respondents, because the Act relating to
mandamus provides that either party may have disputes as to material facts settled by a
jury. To hold otherwise would be to assert that the Act of Assembly might be nullified in
every case where a rule is granted by the respondents merely denying the facts upon
which the relator relied, no difference how meritorious his case.
*3 I find no reported case in which it appears that the writ was refused because of
anything contained in the answer; while Drexel v. Man, 6 W. & S. 386, may seem at first
view in conflict with this statement, yet a careful examination of its peculiarities has not
led me to think otherwise.
In Phoenix Fire Company v. Sellers, 18 W. N. C. 250, the court say that "upon a rule to
show cause the question was the sufficiency of the relator's suggestion, his right to the
relief prayed for upon the footing of the facts therein stated." This is the last declaration
of our Supreme Court in reference to this matter.
"When that case was first considered in the court below, the petition alone seems to have
been regarded:" 13 W. N. C. 45.
In Kennedy v. Temperance Society, 7 Luz. Leg. Reg. 24, Justice Dana held that "the only
question, upon the rule, for the court, is whether the petition discloses sufficient ground
for the allowance of the writ."
Rice, Justice, in Com. ex rel. v. Morton et al., 6 Luz. Leg. Reg. 207, determined that, on
the hearing of a rule to show cause why a mandamus should not issue, all the material
allegations of the petition are assumed to be true, and the only question is whether the
petition discloses sufficient grounds for the allowance of the writ.
In a motion to discharge a rule to show cause why a writ of mandamus should not issue,
the court cannot look at any facts outside of the record annexed to the application for
such rule: State v. Sheboygan Co., 20 Wis. 104.
The other question is, that, admitting the facts contained in the petition of the relator to be
true, does it appear that he is entitled to the alternative writ?
Dickinson College is incorporated. While its charter confers privileges, it does not
exempt its managers from the performance of ordinary duties and obligations. The
control of its administration is partly lodged in a board of trustees and partly in its
faculty. The latter are its agents for some purposes, the former for others. With the
professors is deposited the sole power of discipline, and there is no appeal from their
determination except in cases of expulsion. The relator had been duly admitted to the
institution, and had a right to the benefits which might thereby accrue to him, unless
forfeited by his own act. He states, under oath, that he committed no act which would
justify his dismissal. He was sui juris, and not, therefore, a juvenile pupil, the subject of
parental discipline or control.
The state is so watchful of the rights of its citizens that its courts are always open to the
meanest and humblest, when there has been any breach of contract, trespass upon
property, or harm to person or reputation, and much as they may properly hesitate about
entertaining complaints which may bring into question the disciplinary control of those
who are acquiring an education, yet they cannot safely hold that during that period the
ability of the pupil to assert rights, or seek redress for wrongs, is entirely suspended in so
far as regards those who may have him under supervision.
*4 Nor can it be said that the matter of expulsion from a college is of less moment to the
individual that many matters for which redress is daily sought and obtained in legal
tribunals. To those who have charge of the culture of our youth, is conceded the power of
making needful rules and regulations for their government and control, and these may be
enforced, if done in a due manner without external interference, even though at times
hardships may seemingly be done and innocency suffer, but the reasonableness of such
rules and regulations, as well as the regularity of the proceedings under them, have been
decided, not infrequently, to be a proper subject for judicial inquiry.
This writ of mandamus has been invoked successfully to restore trustees to the boards of
educational institutions, and professors to their chairs. It has been granted to reinstate
members in church corporations, to social clubs, to medical societies, to fire companies,
to aid societies, to city councils, and pew-holders to their sittings. The courts have used it
to compel the admission of pupils to schools who have been unlawfully excluded
therefrom, and to secure the readmission of those unlawfully expelled. The cases in
which it has been asked to inquire into the relation of teacher and pupil are numerous,
and in no case in any state have I found it intimated by any court, that jurisdiction does
not lie because of the peculiar relation existing between the parties. In Trustees of School
v. The People, 87 Ill. 303, a pupil was restored by mandamus, although it was conceded
that, under the direction of his father, he had refused to comply with a regulation of the
school, the court holding that the regulation was an unreasonable one, and, therefore, not
obligatory, and expulsion could not take place lawfully for its violation. Similar views
were held in the cases of Rulison v. Post, 79 Ill. 567, and other cases. In Com. ex rel. v.
Davis et al., 10 W. N. C. 156, the court granted a mandamus to compel admission of
negro children into schools for white children, although there was a separate school
founded for them.
The Supreme Court of our state in the case of Kaine et al. v. School Directors, reported in
101 Pa. 490, take the same view, and adjudge the granting of a peremptory mandamus in
such cases proper.
The case of People v. Wheaton College, 40 Ill. 186, cited by the respondents in the
present case, is where a student of a college was expelled for a violation of a rule which
forbade students from becoming members of secret societies. The facts were undisputed
as to his violation of the rule, and the court held that the rule was not unreasonable, and,
therefore, sustained the action of the college authorities. But the right to jurisdiction was
not questioned from anything that appears in the report of the case.
In Smith ex rel. v. Wetter, 8 N. E. R. 708, it appeared in the petition filed that the pupil
had refused to comply with a regulation of the school, and his expulsion was, therefore,
under the circumstances deemed proper. Neither these, nor any other cases cited, contain
rulings to the effect that courts have not power to inquire into the reasonableness of rules
for the government of institutions of learning, and the regularity of the proceedings under
*5 We have been duly impressed with the import of the matter before us, and have only
arrived at the conclusion that it would be erroneous to refuse an alternative writ after the
fullest examination of the authorities, and consideration of them with reference to the
averments contained in the petition of John M. Hill, the relator. Upon the return of the
writ all parties can be fully heard, and a complete inquiry made into the truth and merits
of the case.
The rule granted in this case is made absolute, and a writ of alternative mandamus is