Corley v. Montgomery

• Citation: 46 S.W.2d 283,226 Mo.App. 795
• Parties: A. B. CORLEY ET AL., APPELLANTS, v. J. T. MONTGOMERY ET AL., RESPONDENTS
• Decision Date: 01 February 1932
• Court: Kansas Court of Appeals

46 S.W.2d 283

226 Mo.App. 795

A. B. CORLEY ET AL., APPELLANTS, v. J. T. MONTGOMERY ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

February 1, 1932

Appeal from the Circuit Court of Pettis County.--Hon. Dimmitt Hoffman, Judge.

AFFIRMED.

Judgment affirmed.

Irwin & Bushman for appellants.

Donald S. Lamm for respondents.

OPINION

TRIMBLE, P. J.

This is a suit brought July 29, 1930, against the members of the School Board of Sedalia by resident tax-paying citizens of one of the subdivisions of the Sedalia School District, being a ward school and known as the "Arlington School," which has heretofore, for twenty-four years, been maintained as a primary ward school, but which the board is about to abandon and no longer maintain, thereby requiring the children of that ward school to attend school at other schoolhouses in other parts of the city. The object of the suit is to compel the board to continue the maintenance of said primary ward school and to furnish teachers for said school and reasonable facilities for carrying on said primary school in said ward.

Upon the appearance of the board, a demurrer was filed, which after hearing, the trial court sustained, and, plaintiffs refusing to plead further, judgment was rendered for defendants. Thereupon, plaintiffs appealed.

The Sedalia School District includes Sedalia, a city of the third class, and, under the provisions of section 9194, Revised Statutes 1929, is a "City School District."

Years prior to the institution of this suit the board of education under provisions similar to those in what is now section 9330, Revised Statutes 1929, divided the school district into school wards, and established an adequate number of primary or ward schools, and erected and furnished a suitable school building in each, of which the ward school involved herein is one. And ever since that time, said Arlington school has been recognized as such and a school has been maintained therein for the accommodation of the children residing in the territory assigned to said ward and ward school.

The petition, after alleging the character and qualification of the plaintiffs, the names of the defendants as members of said Sedalia School District and their duties, the creation, establishment twenty-four years ago, and the subsequent maintenance, of said Arlington Ward School, and the other facts stated in the opening paragraph of this opinion, goes on to allege in substance that--

The boundaries of said Arlington ward school, located in the easterly part of the city of Sedalia, comprised all that part of the city lying east of New York Avenue and Porter Street, and south of the Missouri Pacific right-of-way; that said school building contains four rooms and is capable of accommodating 125 pupils; that during the school year of 1929-30, approximately ninety-eight pupils were in attendance at said school, and that more than 100 resident pupils of said ward will, if permitted, attend said school during the school year of 1930-31.

That the assessed valuation of the property in said ward school district is $ 500,670, and the resident tax-paying citizens of said ward will be taxed, during the year 1930, for the support of the public schools in Sedalia, in the sum of $ 7,009, and will be forced to continue to pay taxes from year to year on property in Sedalia School District and especially located in Arlington Ward School District.

The petition further alleges that--"the defendants, the board of directors of the said Sedalia School District, are threatening and are about to abandon said ward school and to discontinue the school within said ward and unless enjoined from so doing they will consummate their purpose in closing said school in said ward to the pupils within said ward district and that the children of said Arlington School Ward, will be required to travel long distances in order to reach other school houses in other wards in said city; that no vote was taken at the last annual meeting authorizing the board of directors of Sedalia School District to remove said school house site or authorizing said board of directors of said Sedalia School District to abolish said school or ward district and to remove therefrom the established school therein or to remove the site of said school house to some other place within the city of Sedalia other than the place heretofore established, maintained and know as the Arlington school house.

"that if the defendants are permitted to carry into execution their threat to abolish said school and to remove the same to some other site it will cause great hardship and inconvenience on the pupils of said district and cause them to travel long distances in order to reach a primary school; that the children who will attend Arlington school are those only who are in the primary grades and are physically incapable of going long distances to school; that by causing said children to travel long distances to reach a primary school it would subject them to the rigors of the winter season and endanger their lives from traffic upon the streets and be injurious to their health and will greatly militate against their school progress and the obtaining of the benefits of a primary education, and many therein would be unable to attend school on account of the removal of said school house to some other part of the district.

"that the said Arlington school house has already been constructed, that it is ample and commodious for the purpose of carrying on primary schools therein, and that there is ample funds in the treasury of said district with which to employ teachers therein.

"that many of the homes in that section of the city of Sedalia have been purchased, located and built and investments made upon the faith of the continuance of said school, and that a discontinuance of said primary school within said ward district would greatly depreciate their property, and especially the property of these plaintiffs, for which they will have no adequate remedy at law.

"that the action of said board in undertaking to discontinue said school and to remove the same to other parts of the city outside of the boundaries of said ward as heretofore laid out and prescribed is arbitrary, unreasonable, unjust and oppressive upon the part of said board of education, and for which arbitrary, unjust, unwarranted and illegal acts of said board which they are now about to consummate, these plaintiffs have no adequate remedy at law."

The petition closed with a prayer that defendants be required to show cause why they should not be compelled by mandatory order to continue to employ teachers in said Arlington ward school, and to maintain the usual and ordinary teachers and facilities for said school, and, on final hearing, be required to continue the same.

The vital question in this case is, not whether the board of education should discontinue the ward school in question, but whether it has the power to do so, without a vote of the people? If it has such power then mandamus will not lie, for mandamus cannot control discretionary action. [State ex rel. v. Dickey, 280 Mo. 536, 548-9, 219 S.W. 363.]

We do not think the case can be disposed of on the ground that the petition, in alleging that the attempted discontinuance of the school "is arbitrary, unreasonable, unjust and oppressive" or is "unjust, unwarranted and illegal," pleads only legal conclusions. Of course, if there were no facts alleged in the petition showing that the threatened action was of such character then the above quoted words would be no pleading but mere conclusions of law. But these so-called vituperative epithets" are not unaccompanied by the statement of facts to support them. For instance, the petition alleges that the school district has the money to maintain the ward school; that great hardship and inconvenience will ensue to the pupils of said ward school, in that they are in the primary grades and are physically incapable of going long distances to other schools; that they will be subjected to the rigors of the winter season and be exposed to danger from traffic (no small danger in these days of swift moving automobiles and careless, not to say drunken, drivers); that property has been purchased on the faith and on the reliance of the fact that a nearby school was and would be maintained, and such property will greatly depreciate if the school is discontinued. Legal conclusions do no harm if they appear as the result of, or are supported by, pleaded issuable facts; but when they are unaccompanied by such facts, then they render the petition demurrable. [Dyrcz v. Hammond Packing Company, 194 S.W. 761, 762; Tucker v. Diocese of West Missouri, 264 S.W. 897, 902; Roberts v. Anderson, 254 S.W. 723.] A pleading is to be liberally construed. Section 801, Revised Statutes 1929; and will be sustained "however inartificially the facts may be stated." 21 R. C. L., section 80, page 519; provided, of course, it is open to construction and contains all the constitutive facts necessary to a good cause of action. [Mallinckrodt Chem. Works v. Nemnich, 169 Mo. 388, 397, 69 S.W. 355.]

So that we cannot say that the petition is demurrable on the ground that only legal conclusions were pleaded. It may be that the pleaded facts are not sufficient in law to justify the granting of the relief sought, but this point is not relied upon as ground of the demurrer.

In presenting this appeal the parties discuss the case differently, that is, one side seems to regard it as that of a mandatory injunction suit, while the other treats it as a suit in mandamus to compel the board to do the things above mentioned. As there is nothing in the petition seeking to enjoin the doing of anything then being done, but only to compel...