Hume v. Independent School Dist. of Des Moines

• Decision Date: 24 September 1917
• Docket Number: 31355
• Citation: 164 N.W. 188,180 Iowa 1233
• Parties: JAMES C. HUME, Appellant, v. INDEPENDENT SCHOOL DISTRICT OF DES MOINES, Appellee
• Court: Iowa Supreme Court

164 N.W. 188

180 Iowa 1233

JAMES C. HUME, Appellant, v. INDEPENDENT SCHOOL DISTRICT OF DES MOINES, Appellee

No. 31355

Supreme Court of Iowa, Des Moines

September 24, 1917

Appeal from Polk District Court.--HUBERT UTTERBACK, Judge.

ACTION in equity to enjoin defendant from expelling Thomas D Hatton, a nephew of plaintiff's from the West Des Moines High School because of the nonpayment by plaintiff or anyone for said minor of tuition for schooling and instruction, and to recover $ 50.75 already paid by appellant to defendant school board on account of tuition for said boy, which payment is alleged to have been made under protest and because of coercion and duress by defendant. There was a demurrer to the petition, which was sustained, and, plaintiff refusing to plead further, judgment was rendered against him and he appeals. Reversed.

Reversed.

Cummins Hume & Bradshaw, for appellant.

Charles Hutchinson, Robert J. Bannister, and Roy E. Cubbage, for appellee.

PRESTON, J. GAYNOR, C. J., WEAVER and STEVENS, JJ., concur.

OPINION

PRESTON, J.

So much of the petition filed March 25, 1915, as appears to be necessary to a determination of the case is substantially this: Plaintiff is, and for more than 30 years has been, a resident, citizen and heavy taxpayer of the city of Des Moines and the defendant school district; Thomas D. Hatton, a minor about 19 years of age, prior to August 29, 1914, lived with his parents in Humboldt County, Iowa, which is still the place of residence and domicile of his parents; at about the date last mentioned, said minor left Humboldt County, with the intention to remove permanently therefrom, and came to the city of Des Moines, intending to make Des Moines his permanent home, and with no present intention to return to Humboldt County to live, and he has no present intention to remove from Des Moines; the removal aforesaid to Des Moines was in pursuance of an arrangement made about January, 1914, by and between said minor and his parents and the plaintiff, whereby said parents, the minor concurring therein, agreed to surrender to plaintiff the personal custody, control and society of said minor during the rest of his minority, and the plaintiff agreed to take said minor into his home as a member of his family, and, so long as said minor conducted himself in a proper and satisfactory manner, to support and educate him; since said August 20th, said minor has been an actual resident of Des Moines, living with plaintiff, and is entitled to attend the free public school known as the West Des Moines High School; the terms of the agreement have been and will be fully kept; said minor was admitted to said high school about August 26, 1914, and has continued in attendance there and intends to so continue until the end of the school year of 1915; about February 4, 1915, defendant, by its board of directors and secretary, demanded of plaintiff payment of tuition for said minor for the school year 1914-1915, at the rate of $ 7.25 per month, under threat of expulsion of the minor unless payment was made, alleging as ground for said demand that the minor was a nonresident of the defendant school district, and that, under the laws of Iowa, he was liable for such tuition; about March 17, 1915, in compliance with a written demand of the secretary's, plaintiff paid to defendant, under protest, $ 50.75, the amount claimed to be due for tuition of said minor for 7 months, ending March 26, 1915; plaintiff paid a large amount of school taxes in 1914, and would pay a large amount for the year 1915; plaintiff had no child or ward in attendance at the public schools of defendant district other than said minor, nor had he been advantaged personally or otherwise, except as a citizen of Des Moines, by the payment of said taxes. It is further alleged that, on March 26, 1915, the defendant claimed that another month's tuition of $ 7.25 on account of said minor will be due, and a like amount on the 26th of each month thereafter during the balance of the school year 1914-1915; that, unless said installments of tuition are paid, defendant is threatening to, and unless restrained will, expel said minor from said high school and deprive him of his right to attend and receive instruction, to the irreparable injury of said minor and of the plaintiff, and that the action of defendant in coercing plaintiff to pay the said sum of $ 50.75, and the acts of defendant in all the particulars mentioned, are illegal and an illegal exercise of power of defendant; that for plaintiff to yield to the demands aforesaid for the months commencing March 26th or suffer the expulsion of said minor will necessitate a multitude of suits at law to recover from defendant the amounts paid to it by plaintiff; that plaintiff has no plain, speedy or adequate remedy, save in a court of equity.

The demurrer to the petition was as follows:

"The defendant demurs to plaintiff's petition on the ground that the facts therein stated do not entitle the plaintiff to the relief demanded, nor to any relief whatever; and on the further ground that it appears from said petition that this court has no jurisdiction to issue an injunction herein, but that the plaintiff's remedy, if any, is by appeal from the action of the board of directors of the defendant, and that plaintiff has no right to maintain this action."

The points involved are, therefore, whether plaintiff's remedy was by appeal from the action of the board of directors to the county superintendent and the state superintendent, and whether plaintiff was entitled to the relief demanded, because he had a plain, speedy and adequate remedy by such appeal.

A number of other questions are argued and claimed by appellant to be involved in the points just mentioned. These different points are elaborately and ably argued by counsel in their briefs of more than one hundred pages. Appellant's principal contentions, stated as briefly as may be, are: That Thomas D. Hatton is, within the meaning and intent of Section 2773 of the Code of Iowa, an "actual resident" of the defendant district, and as such, being a minor within the statutory school age, is entitled to free schooling in the schools of said district; that, even should the "actual residents" to whom said section grants free schooling be held to include only those who have acquired a technical legal domicile within the school district, nevertheless, having been surrendered by his parents to the plaintiff as stated, and having taken up his residence in the school district permanently, said minor acquired a domicile in Des Moines and is entitled to the freedom of its schools; that, even should said Thomas be held to be a nonresident of defendant district within the meaning of the statute referred to, the plaintiff, having assumed the position of parent or guardian of said minor, and become liable for his support and education, is, under Section 2804 of the Code, entitled to deduct the amount of school taxes paid by him in defendant district from the amount of tuition required to be paid on account of said minor; that these taxes exceed the amount of tuition claimed; that this suit, being one to prevent a threatened irreparable wrong for which there is no speedy, adequate and complete remedy at law, is maintainable in equity, notwithstanding the provisions of Section 2818 of the Code, authorizing appeals from decisions of boards of directors to the county superintendent, etc; that, as incidental to the equitable relief, plaintiff is entitled to recover the tuition money wrongfully extorted, even though an injunction be not granted; and that, though the statute authorizing an appeal be held to take away plaintiff's remedy by injunction, still, under the allegations of his petition, he was entitled to some relief to recover the money alleged to have been wrongfully extorted; that, plaintiff having assumed the position of one standing in loco parentis to said minor, and the obligation incident thereto, it was plaintiff's right and duty to bring this action.

Appellant's propositions are disputed by appellee, which contends that the question of the residence of said minor and his liability, or that of plaintiff, for the payment of tuition, and like questions raised by the petition, were questions for the determination of the board of directors, and that, the board having passed upon and determined them, plaintiff's remedy was by appeal to the higher school authorities, if he claimed that the decision of the board was erroneous. The appellee also contends that there are large numbers of grandparents and other relatives and friends living in Des Moines who have young relatives residing in other parts of the state whom they would be glad to bring into their homes for the purpose of securing to such children the advantages of the finely equipped facilities provided by defendant district; that a determination against defendant in this case would deprive defendant school board of the right to exact tuition from nonresident children attending its schools, and would cause an influx of persons of high school age whose parents are unable, on account of pecuniary circumstances or a geographical location, to furnish high school facilities to them, and thus burden the taxpayers of defendant district and require the building of other school buildings and the furnishing of additional school facilities, when the schools are already overcrowded.

As suggested, the arguments have taken a wide range, and some of them may be beyond the issues. Appellee strenuously insists and cites numerous authorities to the point, that plaintiff may not maintain this action in equity, because, under the statute, he has a plain, speedy and adequate remedy by appeal to the county superintendent and...