Crawford v. District School Board for School Dist. No. 7, in Klamath County

• Decision Date: 30 December 1913
• Citation: 137 P. 217,68 Or. 388
• Parties: CRAWFORD v. DISTRICT SCHOOL BOARD FOR SCHOOL DIST. NO. 7, IN KLAMATH COUNTY, ET AL.
• Court: Oregon Supreme Court

137 P. 217

68 Or. 388

CRAWFORD v. DISTRICT SCHOOL BOARD FOR SCHOOL DIST. NO. 7, IN KLAMATH COUNTY, ET AL.

Supreme Court of Oregon

December 30, 1913

Department 1.

Appeal from Circuit Court, Klamath County; Henry L. Benson, Judge.

Application by William Crawford for writ of mandamus to the District School Board for School District No. 7, in Klamath County and others. From a judgment sustaining demurrers to the amended alternative writ and dismissing the proceeding, the petitioner appeals. Reversed and remanded, with instructions.

This is an application by William Crawford for a writ of mandamus to compel the School Board of District No. 7, of Klamath County to permit his two children, namely, Juanita and Naoma Crawford, to attend the public school held in said district and to receive instructions as pupils therein. Demurrers to the amended alternative writ of mandamus issued in said proceeding were sustained, and said proceeding was dismissed by the court below. The petitioner appeals. Reversed.

C. M Oneill, of Klamath Falls, for appellant. D. V. Kuykendall, of Klamath Falls (Thomas Drake and Kuykendall & Ferguson, all of Klamath Falls, on the brief), for respondents.

RAMSEY, J.

The petitioner and his wife are of half Indian blood, and their children are half Indians also. The petitioner is a native of Yreka, Cal., and his wife is a native of Klamath Falls, in this state, and both the petitioner and his wife, and also their children, are citizens of the United States and of this state, and residents of Klamath county. The fathers of the petitioner and of his wife were white men and their mothers were Indian women. The petitioner and his wife and their children are, and for some time prior to the commencement of this proceeding were, residents and inhabitants of school district No. 7, of Klamath county, and the petitioner was and is a taxpayer in said school district. The petitioner and his wife and their children live separate from any Indian tribe. The petitioner and his wife have five children, and two of these children are Juanita Crawford, aged nine years, and Naoma Crawford, aged eight years. The petitioner and his wife and each of their children hold completed allotments of and patents for land on the Klamath Indian Reservation, but they do not live on said reservation. The petitioner, his wife and his children, have voluntarily adopted the customs, usages, and habits of civilized life. The petitioner's said two children attended the public schools of said school district for two years prior to September 27, 1912, and received instructions therein the same as other children did. The amended alternative writ of mandamus sets forth facts showing that the petitioner's two said children were in all respects entitled to be admitted to attend the public schools of said school district, and to receive instructions therein free of charge, under subsection 18 of section 4052, L. O. L., unless their being of half Indian blood disqualified them to attend the public schools and receive instructions therein. It appears from said writ that the teacher, who taught the public school in said school district No. 7, by orders of the school board of said school district, excluded said Juanita Crawford and Naoma Crawford from the public school taught in said district, and from receiving instructions therein. The defendants filed demurrers to said amended alternative writ of mandamus, alleging the following grounds thereof: (1) That the court has no jurisdiction of the persons of the defendants, or of the subject of this action; (2) that the plaintiff has not capacity to sue; (3) that there is a defect of parties defendant; (4) that the said writ does not state facts sufficient to entitle the petitioner to the relief demanded. Their demurrers were sustained, and said proceeding was dismissed by the court below. The petitioner assigns as error the sustaining of said demurrers and the dismissal of said proceeding.

1. The court below acquired jurisdiction of the persons of the defendants by service of process and by their appearances. They appeared and filed demurrers to the writ. This would have conferred jurisdiction of their persons, if they had not been duly served with process.

The court below is a court of general jurisdiction, and the statute expressly confers jurisdiction upon circuit courts to grant writs of mandamus. Section 614, L. O. L. The court below had jurisdiction of the persons of the defendants and of the subject-matter of the proceeding.

2. A father is the natural guardian of his minor children, and is charged by law with the duty of attending to their support and education. Under our statute he is guilty of a misdemeanor if he fails to send his children to the public schools according to law. Section 4120, L. O. L., and page 428 of Laws for 1911.

The petitioner, as father of his children, has the right to maintain this proceeding to compel the school board to permit his minor children to attend the public schools and to be instructed therein, according to law. High on Extraordinary Legal Remedies (3d Ed.) § 438.

3. The third point made by the demurrers is that there is a defect of parties defendant. Defect means too few--not too many. There is a defect of parties defendant only when one or more parties that should have been made defendants have not been made parties to the suit or proceeding.

In Sutherland on Pleading, section 273, the author says: "This phrase means too few--not too many. When it appears upon the face of the complaint that the presence of other parties is necessary to a complete determination of the controversy, a demurrer will lie for a defect of parties, plaintiff or defendant."

It is also a rule of pleading that when one demurs to a complaint for a defect of parties plaintiff or defendant, it is necessary for the demurrant to state, in the demurrer, who the omitted party, plaintiff or defendant, as the case may be, is, in order to enable plaintiff to amend his pleading by including all the necessary parties.

Speaking upon this subject, Sutherland, in section 276, vol. 1, of his work on Pleading, says: "A demurrer under this subdivision, following the words of the Code, that there is a defect of parties defendant is insufficient for not specifying the particular defect. It must show who are the proper parties from the facts stated in the bill, not indeed by name, for that might be impossible, but in such a manner as to point out to the plaintiff the objection to his bill, and to enable him to amend by making proper parties."

Bliss, in his work on Code Pleading (3d Ed.) § 411, inter alia, says: "The defect of parties for which a demurrer is allowed is a deficiency, not an excess of parties. * * * A demurrer for this cause will not lie unless it affirmatively appears by the pleading demurred to that the person who should have been made a party is living at the time the action is commenced; if it does not so appear, the objection must be taken by answer, and, in either case, the names of the omitted parties must be given."

The demurrers do not point out any person who should have been made a defendant, and hence they raise no question for determination on that point.

4. The principal point made by the demurrers is that the amended alternative writ does not state facts sufficient to entitle the petitioner to the relief demanded. It was claimed, on the argument, that school district No. 7, had established a school for Indian children and children that are part Indian, separate from the school attended by white pupils, and that the petitioner's children were excluded from the school which they desired to attend, and that they were directed to attend the school established for them and other children who were part Indian; but the amended alternative writ does not show such a state of facts. It is claimed by the defendants that the petition for the writ and the original writ set out these facts. The defendants had copies of the petition and the original writ sent up for the purpose of showing those facts. The petition for a writ of mandamus is presented to the court for the purpose of obtaining the issuance of a writ, and, as soon as a proper writ has been issued, the petition becomes functus officio, and the writ cannot be aided by reference to the petition. An alternative writ of mandamus, properly drawn, is required to state concisely the facts, as stated in the petition, showing the obligation of the defendant to perform the act desired, and his omission to perform it, etc. In other words, the material facts stated in the petition should be recited in the alternative writ. Section 616, L. O. L. The defendant on the return day may show cause, either by demurrer or by answer (section 618, L. O. L.), and the demurrer or answer is to be made to the writ, in the same manner as to a complaint. The only pleadings in a mandamus proceeding are the alternative writ, the demurrer or the answer to the writ, and the demurrer or the reply to the answer. Sections 618-619, 620, L. O. L. Pleadings may be amended, and issues made up and tried, in like manner and effect, as in an action. Section 620, L. O. L. When the writ was amended, the amended writ took the place of the original, and the latter ceased to be of any force in the proceedings. We cannot consider either the petition or the original writ for any purpose on the appeal.

In Elliott v. Oliver, 22 Or. 45, 46, 29 P. 2, the court says: "The facts stated in the writ should be the same facts stated in the petition for the writ, as no resort or reference can be had to the petition in aid of the writ."

In McLeod v. Scott, 21 Or. 111, 112, 29 P. 1, the court says: "The petition is no part of the pleadings. * * * This being so, the writ must...