250 S.W. 538 (Ark. 1923), 295, Pugsley v. Sellmeyer

Docket Nº:295
Citation:250 S.W. 538, 158 Ark. 247
Opinion Judge:SMITH, J.
Party Name:PUGSLEY v. SELLMEYER
Attorney:C. O. Raley and J. N. Moore, for appellant. M. P. Huddleston, for appellees. J. N. Moore, in reply.
Judge Panel:SMITH, J. HUMPHREYS, J., concurring. HART, J., dissenting. HUMPHREYS HUMPHREYS, J., (concurring). HART HART, J., (dissenting).
Case Date:April 09, 1923
Court:Supreme Court of Arkansas
 
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Page 538

250 S.W. 538 (Ark. 1923)

158 Ark. 247

PUGSLEY

v.

SELLMEYER

No. 295

Supreme Court of Arkansas

April 9, 1923

Appeal from Clay Circuit Court, Western District; W. W. Bandy, Judge; affirmed.

Judgment affirmed.

C. O. Raley and J. N. Moore, for appellant.

The motion to dismiss appeal is without merit, the controversy between the parties not being settled, and should be dismissed. Case unlike 224 S.W. 617 or cases collected in 5 Ann. Cas. 628, showing dismissal where acts sought to be completed had been performed and where time for performance of acts sought to be compelled had passed. 47 P. 424; 67 P. 1104; People v. Troy, 82 N.Y. 575, 15 S.C. 322. Mandamus was the proper remedy to compel the reinstatement of a pupil in the public school who had been wrongfully expelled for refusal to obey an arbitrary and unreasonable rule. 18 S.Ct. 441; sec. 1, Art. 14, Const. 1874; 34 Ark. 394; 45 Ark. 121; 89 Ark. 254. A further demand or request to enter school was unnecessary and would have been unavailing. 113 Ark. 40; 223 Ill. 187; 79 N.E. 123; 2 Bailey on Habeas Corpus 784; 73 N.W. 63; 19 Wend. 56; 22 Wis. 210. Board responsible for acts of its agents. 42 Ark. 563; 58 Ark. 386; 238 S.W. 54; 88 S.W. 582; 58 S.E. 609. Judgment should be reversed and mandamus issued commanding the appellees to allow appellant to enter school.

M. P. Huddleston, for appellees.

The mandamus was properly denied. The county board of education had jurisdiction of the controversy, and the school board, appellees, had the authority to adopt and enforce obedience to the rule. Secs. 8873, Crawford & Moses' Digest, definition words "direction," "supervision." Universal Dictionary English Language; art. 7, sec. 14, Const.; 93 P. 924; 38 N. W. (Dak.) 52; 61 P. 258; 50 L. R. A. 747, 87 Am. St. Rep. 918; 17 S.Ct. 225; 165 U.S. 28, 41 L. ed. 621; 22 Neb. 313; 92 Ark. 492. Courts would not have jurisdiction before county board of education had passed upon controversy. Had authority to direct school board, under language of statute. 35 L. ed. 974, 66 U.S. 1 Black 195, 17 L. ed. 137; 6 Ann. Cas. (Iowa) 966. School board had authority to make rule which was reasonable and not in conflict with any statute. 24 R. C. L., "Schools," §§ 22, 24; 13 Ann. Cas. 330, N. 333; 6 Ann. Cas. (Ia.) 996; 100 N. W. (Ia.) 54; 34 N. W. (Ia.) 780; 61 N. W. (Ia.) 859; 45 A. (N. J.) 755; 32 N. E. (Mass.) 864; 35 Am. Rep. (Ill.) 163. Appellant was not expelled by the school board. Its only action was the adoption of the rule. 35 Cyc. 901-3; 71 N. W. (Wis.) 123; 34 Am. Dec. (Mass.) 133 Mass. 103. Expulsion justified. 48 Cal. 36, 17 Am. Rep. 405. No longer any controversy, as shown by affidavits of school directors, and appeal should be dismissed. 145 Ark. 303; 49 U.S. 8 How. 251; 149 U.S. 308; 113 Ark. 24; 2 R. C. L. Appeal & Error, § 145; 24 Am. Eng. Ann. Cases, 246; 5 Ann. Cas. 626, note.

J. N. Moore, in reply.

County board had no jurisdiction of the matter. Statute limits its supervision and direction to such questions "as are not otherwise provided for by law." Directors have charge of school affairs and power to make and enforce all necessary rules and regulations. Secs. 8916, 8943, Crawford & Moses' Digest. Court had jurisdiction. 6 A. L. R. 1525; 9 N.W. 356; 66 N.W. 765; 69 N.W. 544; 105 N.W. 686; 3 L. R. A. (N. S.) 496; 6 Ann. Cas. 996; 77 N.W. 491; 166 N.W. 202; 183 N.W. 434. Every step taken by appellant in this suit is legalized by 224 S.W. 442. Rule was unnecessary and unreasonable, and the expiration of the term does not terminate appellant's right to attend school nor diminish her right to the relief sought.

SMITH, J. HUMPHREYS, J., concurring. HART, J., dissenting.

OPIN...

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