Morow vs. Wood. exceeding one hundred dollars, which had been reduced by credits or payments indorsed thereon, to an amount not exceed ing one hundred dollars, and that it did not attempt to confer jurisdiction where the note or other instrument was given for one hundred dollars or under, but that jurisdiction over actions on notes and bills of the latter class was conferred by subdivision 1 of section five, which by the act of 1870 had been extended to actions wherein the debt or balance due or damages claimed did not exceed two hundred dollars, is a new argument in support of the decision in Howard v. Mansfield, and no doubt a better and more satisfactory one than any adduced in the opinion in that case. It seems very clear that counsel are correct in their views and construction of the statute; for they construe according to its plain reading, which leaves no room for doubts or surmises; and, if the decision in Howard v. Mansfield had also been put upon this ground, it would doubtless have escaped the criticisms of which it has sometimes been the subject. By the Court.-Judgment reversed, and cause remanded to the circuit court with directions that it be dismissed. MORROW Vs. WOOD. PUBLIC SCHOOLS. (1, 4) Rights of parent and teacher. Infliction of corporal punishment by teacher on child, for obedience to parent. MALICIOUS PROSECUTION. (2, 3) When the action will lie. 1. Where a father had directed his child, in attendance upon a public school in this state, to pursue only certain studies selected by the father from those required or permitted by law to be taught in such school, and actually taught therein, and had forbidden the child to pursue a certain other study, and this fact was known to the teacher of the school, such teacher was not authorized to inflict corporal punishment upon the child for the purpose of compelling it to pursue the study so forbidden by the father. Morrow vs. Wood. 2. Where the teacher inflicted corporal punishment in such a case, and the father caused her to be prosecuted as for an assault and battery upon the child, he was not liable to the teacher as for a malicious prosecution. 3. Whether the action for a malicious prosecution will ever lie in a case where the prosecution was dismissed, on motion of the defendant therein, and without the consent of the complaining witness, is not here decided. 4. Our statutes give the school board in each district power to make all needful rules and regulations for the organization, gradation and gov. ernment of the school, and to suspend any pupil from its privileges for non-compliance with the reasonable rules established by the board, or by the teacher with its consent; and this decision is not designed to interfere with the performance of those duties. APPEAL from the Circuit Court for Grant County. Action to recover damages for the alleged malicious prosecution of the plaintiff on complaint of the defendant, in a criminal action for assault and battery commenced before a justice of the peace. The facts proved on the trial, and some of the instructions given the jury, appear in the opinion. The court also instructed the jury that the command given by the defendant to his son, not to study geography, "did not annul or abridge the right of the teacher to control that matter;" that under the circumstances, as proven, she (the plaintiff) had a right to require the scholar's obedience;" and that, if the punishment inflicted in this case was "reasonable and commensurate with the boy's contumacy," then its infliction by the plaintiff was justifiable. The other instructions need not be stated. Verdict for the plaintiff. From an order refusing a new trial, the defendant appealed. Barber & Clementson, for appellant, contended that the action. could not be maintained, because the criminal prosecution on which it was based was dismissed on motion of the defendant therein, without the consent of Wood. To sustain an action. for a criminal prosecution, it must appear that the plaintiff was acquitted of the criminal charge. 2 Greenl. Ev., § 452; 2 Phil. Ev., 254; Bacon v. Towne, 4 Cush., 235; Parker v. Farley, 10 Morrow vs. Wood. id., 280; 12 id., 482; 106 Mass., 290; 1 Root, 553; 20 Ill., 354; 18 Ind., 161; 41 Barb., 290; 44 Vt., 124; 36 Conn., 56. To the point that the court erred in its instructions respecting the relative authority of parent and teacher, they cited 1 Bl. Com., 453. They also contended that there is nothing in the school laws of this state which confers upon either teachers or district boards any authority inconsistent with the right of a father to restrict his child to a portion of the studies pursued in the school to which such child is sent. 12 Am. Law Reg., N. S. (Sept., 1873), 538, note 58. Geo. C. Hazelton and O. B. Thomas, for respondent, argued, among other things, that the prosecution before the justice of the peace was wholly without probable cause, for the reason that the teacher was invested by the law with the right and authority to inflict reasonable corporal punishment upon a pupil to enforce obedience to a lawful command. Clearly by the common law she had this right. Cowen's Criminal Dig., page 23; Roscoe's Ev., 279; 2 Kent's Com., 230, note a; 1 Whart. Crim. Law, sec. 1259. The teacher had the right, in connection with the school board, to classify and grade the school, and to assign defendant's son to such classes as would conduce to the general interests of the school. The command of the teacher was a lawful one, the legislature having enacted that geography, among other branches, shall be taught in every district school. Tay. Stats., 556, § 57. Again, the district board have authority to purchase, at the expense of the district, when parents are not able to purchase the same, such school books as in their judgment may be necessary for the use of any children attending. The board have also power to make all needful rules, etc. Tay. Stats., 555, §§ 53, 54. In this case this power had been duly delegated to the teacher, and she had the right to exercise it; otherwise all true school discipline would have been destroyed. COLE, J. It is first claimed by the counsel for the defendant, that the court below should have granted the motion Morrow vs. Wood. for a nonsuit because all the evidence showed that the criminal prosecution against the plaintiff for an alleged assault and battery committed by her upon the infant son of the defendant was never tried upon the merits, but was discontinued on her motion and against the consent of the complainant in that action. It is insisted that before an action for malicious prosecution can be maintained, it must appear that the criminal prosecution has been determined in favor of the party prosecuted, by a trial and acquittal, or the prosecution must have been discontinued against his consent. We shall spend no time in the consideration of this point in the case, for the reason that we are fully agreed upon a question of law involved which is fundamental, and underlies the cause, and is entirely decisive of every other question arising upon the record. And as this is a question of some practical importance as affecting the duties and powers of teachers in our public schools, we deem it best to decide it in the present The facts upon which this question of law arises, as established on the trial, are in brief these: case. About the 18th of November, 1872, the plaintiff, a qualified teacher, under a contract with the district school board, commenced teaching a district school in Grant county. The defendant, an inhabitant of the district, sent his son, a boy about twelve years of age, to the school. The defendant wished his boy to study orthography, reading and writing, and also wished him to give particular attention to the study of arithmetic, for very satisfactory reasons which he gave on the trial. In addition to these studies the plaintiff at once required the child to also study geography, and took pains to aid him in getting a book for that purpose. The father, on being informed of this, told his boy not to study geography, but to attend to his other studies; and the teacher was promptly and fully advised of this wish of the parent, and also knew that the boy had been forbidden by his parent from taking that study at that time. But, claiming and insisting that she had the right to direct and Morrow vs. Wood. control the boy in respect to his studies, even as against his father's orders, she commanded him to take his geography and get his lesson. And when the boy refused to obey her, and did as he was directed by his father, she resorted to force to compel obedience. All this occurred at the first week of school. The defendant instituted a criminal action before a justice for this assault and battery upon his son, which is the malicious prosecution complained of. If the teacher had no right or authority to chastise the boy upon these facts for obey. ing his father, this action must fail. And whether she had or had not the power to correct him, is the question in the case, for it is not pretended that the boy was otherwise disobedient, or was guilty of any misconduct, or violated any rule or regu lation adopted for the government of the school. The cir cuit court, in considering the relative rights and duties of parent and teacher, among other things, told the jury that when a parent sent his child to a district school he surrendered to the teacher such authority over his child as is necessary to the proper government of the school, the classification and instruction of the pupils, including what studies each scholar shall pursue these studies being such as are required by law, or are allowed to be taught in public schools. And the court added in this connection, that a prudent teacher will always pay proper respect to the wishes of the parent in regard to what studies the child should take, but where the difference of view was irreconcilable on the subject, the views of the parent in that particular must yield to those of the teacher, and that the parent, by the very act of sending his child to school, impliedly undertakes to submit all questions in regard to study to the judgment of the teacher. In our opinion there is a great and fatal error in this part of the charge, particularly when ap. plied to the facts in this case, in asserting or assuming the law to be, that, upon an irreconcilable difference of views between the parent and teacher as to what studies the child shall pursue, the authority of the teacher is paramount and controlling, |