Concerned Parents v. Caruthersville School Dist. 18

Decision Date11 April 1977
Docket NumberNo. 59626,59626
Citation548 S.W.2d 554
PartiesCONCERNED PARENTS et al., Appellants, and State Board of Education, Intervenor-Appellant, v. CARUTHERSVILLE SCHOOL DISTRICT 18 et al., Respondents.
CourtMissouri Supreme Court

Robert J. Goodwin, Caruthersville, for appellants.

Karen M. Iverson, Asst. Atty. Gen., Jefferson City, for intervenor-appellant.

Byron D. Luber, Caruthersville, for respondents.

FINCH, Judge.

This is an appeal from an order of the circuit court dismissing plaintiffs' petition with prejudice on the ground that it failed to state a claim for relief. The principal question to be resolved is whether public school districts in Missouri are constitutionally prohibited from charging registration fees and course fees as prerequisites to enrollment and to participation by school age children in classes offered for academic credit by the district. Plaintiffs contend that the district's policy of charging registration and course fees, plus requiring students to furnish certain supplies in courses offered for academic credit, violates Mo.Const. art. IX, § 1(a), which requires that free public schools be maintained for the gratuitous instruction of all children of school age, and the equal protection clauses of Mo.Const. art. I, § 2, and U.S.Const. amend. XIV. Since issues of constitutional construction are involved, we have jurisdiction. Mo.Const. art. V, § 3. We reverse and remand.

In the petition herein, filed November 26, 1975, plaintiffs are Concerned Parents, an unincorporated association of 18 people (14 of whom have children in the school district), six parents who have children attending schools in the district and 13 children who are attending said schools. Defendants named in the petition are the Caruthersville School District 18, its superintendent of schools and members of the board of education of the district.

The petition is in four counts. Count I seeks declaratory relief, Counts II and III injunctive relief, and Count IV recovery of sums paid as registration and course fees since December 1, 1972.

The petition challenges the following practices which defendants are alleged to employ:

(1) charging a registration fee for all children enrolled in school. These fees were.$2.80 for grades 1 through 6, $3.80 for grades 7 and 8 and $6.50 for grades 9 through 12;

(2) charging fees in certain courses offered for academic credit. Examples alleged include $15.00 for driver education, $3.00 for art, and $2.00 for typing, home economics or band;

(3) requiring students to furnish certain supplies in some courses offered for academic credit;

(4) penalizing students by withholding grade reports and diplomas for non-payment of registration fees and course fees; and

(5) penalizing students by reducing grades and reducing participation in class for failure to furnish certain supplies in courses offered for academic credit. 1

On February 10, 1976, plaintiffs filed a motion asking the court by order to permit them to maintain this suit as a class action pursuant to Rule 52.08(b) (1) and (2). 2 The trial court never acted on that motion. It was still pending on June 8, 1976, when the petition was dismissed for failure to state a claim.

After plaintiffs took an appeal from the order dismissing their petition with prejudice, the State Board of Education was granted leave to intervene as appellants and it has filed a brief. In addition, the American Civil Liberties Union was granted leave to and has filed a brief amicus curiae.

Do plaintiffs have standing to maintain this action?

Before proceeding to consider whether the petition states a claim for relief, we consider first the contention, advanced in defendants' brief, that the trial court did not err in dismissing the suit because plaintiffs lack standing or capacity to maintain this action. They argue that the mandatory requirements of Rule 52.08 governing maintenance of class actions have not been met and that the allegations in the petition are insufficient to authorize a class action.

We conclude that this contention that the court was correct in dismissing the suit because plaintiffs lack standing is without merit. Plaintiffs brought this suit on behalf of themselves individually as well as seeking to maintain it on behalf of certain classes. They are entitled to proceed with the action in their individual capacities, even if they do not qualify to act on behalf of a class. Kansas City Terminal Ry. v. Industrial Commission, 396 S.W.2d 678 (Mo.1965). Since the trial court did not consider or act upon the request that this case proceed as a class action and we act herein as a court of review, there is no issue before us as to whether the action may be maintained as a class action. That will be for consideration by the trial court on remand. In any event, standing of plaintiffs to maintain this action does not depend on the outcome of such request.

In further support of their argument that plaintiffs lack standing, defendants assert that the adult plaintiffs have not been appointed as next friends for the minor plaintiffs as required by Rule 52.02(a) and, hence, may not act in that capacity. Even if true, this would not mean dismissal of this case. Rule 52.02(m) provides that failure to appoint a next friend for a minor shall not invalidate the proceedings if the court finds that the interests of the minor were adequately protected. The adult plaintiffs are the natural guardians of their minor children and we can expect that they will protect the interests of their minor children. 3 See State ex rel. Missouri Pac. R. R. v. Cox, 306 Mo. 27, 267 S.W. 382 (banc 1924); Jones v. Steele, 36 Mo. 324 (1865); Baker v. Mardis, 221 Mo.App. 1185, 1 S.W.2d 223 (1928). In any event, the adult plaintiffs are entitled to maintain the suit on their own behalf and the petition cannot be dismissed on the basis that no minor plaintiff has standing to maintain the action.

Do defendants' alleged practices of charging registration and course fees violate the requirement in Mo.Const. art. IX, § 1(a) that free public schools providing gratuitous instruction be established and maintained?

On a motion to dismiss for failure to state a claim for relief, we accept as true the facts properly pleaded, giving the averments a liberal construction, and making those reasonable inferences fairly deducible from the facts stated. Scheibel v. Hillis, 531 S.W.2d 285, 289 (Mo. banc 1976). Thus, we test the sufficiency of the petition herein on the premise that defendants did charge and plaintiffs paid registration fees for students attending public schools, that plaintiffs also paid course fees and furnished materials in courses offered for academic credit, and that on some occasions students and parents were penalized for non-payment of registration or course fees or failure to furnish materials by having grade reports withheld or grades reduced.

Do these practices, admitted for purposes of this review, violate Mo.Const. art. IX, § 1(a)? 4

The words "free public schools for the gratuitous instruction" of all children of school age were not included in the section on schools and education of Missouri's first constitution. In art. VI, § 1, of the Constitution of 1820, after providing that "(s)chools and the means of education shall forever be encouraged in this state", the legislature was required to establish township schools "as soon as practicable and necessary, where the poor shall be taught gratis". The constitution contained no directive to establish free public schools for all school children. It was later that the state accepted the Jeffersonian concept that education is fundamental to democracy and that the state should assume the primary educational role. 5 From time to time thereafter, the legislature enacted various laws designed to encourage education 6 but it was not until 1865, when a new constitution was adopted, that the state had a constitutional provision which required the legislature to "establish and maintain free schools for the gratuitous instruction" of all persons between 5 and 21 years of age. Mo.Const. art. IX, § 1 (1865). That same provision was repeated in the subsequent constitutions of 1875 7 and 1945, 8 the only difference being that the 1875 constitution specified instruction between 6 and 20 years of age and the 1945 constitution called for such education for persons within ages specified by law but not to exceed 21 years. 9

We are concerned in this case with determining the meaning of the language "establish and maintain free public schools for gratuitous instruction". The key words therein are "free" and "gratuitous".

It is well established that in construing a constitutional provision, "words are to be taken in accord with their fair intendment and their natural and ordinary meaning". Theodoro v. Department of Liquor Control, 527 S.W.2d 350, 352-353 (Mo. banc 1975); State ex rel. Heimberger v. Board of Curators of University of Missouri, 268 Mo. 598, 188 S.W. 128, 130 (banc 1916). When language is plain and unambiguous, no construction is required. Rathjen v. Reorganized School District R-II, 284 S.W.2d 516, 523 (Mo. banc 1955). Applying these rules of construction, it is proper to look first at dictionary definitions. State ex inf. Danforth v. Cason, 507 S.W.2d 405, 409 (Mo. banc 1973).

Webster's Third New International Directory (1965) defines "free" as meaning "not costing or charging anything * * * given or furnished without cost or payment" and gives as an example "a free school". The word is defined in the Oxford English Dictionary (1961) as follows: "Given or provided without payment, costless, gratuitous. Of persons: (Admitted, etc.) without payment. * * * Free school : 'a school in which learning is given without pay'."

"Gratuitous" is defined in Webster's Third New International Directory (1965) as meaning "costing the recipient or participant nothing: FREE". The Oxford English Dictionary (1961) defines...

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