SUPREME COURT OF MASSACHUSETTS, SUFFOLK

59 Mass. 198; 1849 Mass. LEXIS 299; 5 Cush. 198

November, 1849, Decided

PRIOR HISTORY:  [**1]  This was an action on the case, brought by Sarah C. Roberts, an infant, who sued by Benjamin F. Roberts, her father and next friend, against the city of Boston, under the statute of 1845, c. 214, which provides that any child, unlawfully excluded from public school instruction in this commonwealth, shall recover damages therefor against the city or town by which such public instruction is supported.

The case was submitted to the court of common pleas, from whence it came to this court by appeal, upon the following statement of facts: --

Under the system of public schools established in the city of Boston, primary schools are supported by the city, for the instruction of all children residing therein between the ages of four and seven years. For this purpose, the city is divided for convenience, but not by geographical lines, into twenty-one districts, in each of which are several primary schools making the whole number of primary schools in the city of Boston one hundred and sixty-one. These schools are under the immediate management and superintendence of the primary school committee, so far as that committee has authority, by virtue of the powers conferred by votes of the [**2]  general school committee.

At a meeting of the general school committee, held on the 12th of January, 1848, the following vote was passed: --

Resolved, that the primary school committee be, and they hereby are, authorized to organize their body and regulate their proceedings as they may deem most convenient; and to fill all vacancies occurring in the same, and to remove any of their members at their discretion during the ensuing year; and that this board will cheerfully receive from said committee such communications as they may have occasion to make.

The city of Boston is not divided into territorial school districts; and the general school committee, by the city charter, have the care and