Raison v. Bd. of Educ. of Berkeley Tp.

• Citation: 137 A. 847
• Decision Date: 15 June 1927
• Docket Number: No. 434.,434.
• Parties: RAISON v. BOARD OF EDUCATION OF BERKELEY TP., OCEAN COUNTY.
• Court: New Jersey Supreme Court

137 A. 847

RAISON

v. BOARD OF EDUCATION OF BERKELEY TP., OCEAN COUNTY.

No. 434.

Supreme Court of New Jersey.

June 15, 1927.

(Syllabus by the Court.)

Mandamus by John F. Ralson, relator, against the Board of Education of the Township of Berkeley, Ocean County. Demurrer to petition overruled, with leave to respondent to make return.

Argued May term, 1927, before PARKER and CAMPBELL, JJ.

Eugene R. Hayne, of Jersey City, for relator.

David A. Veeder, of Toms River, for respondent.

PARKER, J. It appears from the writ that relator is a citizen and resident of the township of Berkeley and has a minor child of school age for whose admission into some one of the public schools of the said township he applied to the said board of education, but that said board has refused and does refuse to admit said child into either of the schools thereof, and particularly that nearest his place of residence, solely because and on account of the race and color of said child, who, like the relator, is of the negro race. The alternative direction of the writ is, generally, to receive the child into one of the schools on the same terms as other children, etc.

To this writ there is a demurrer, and five grounds are specified.

The first is that it fails to allege that no other suitable provision has been made for the admission of the child into some other convenient school. This is matter of defense. Primarily, by section 116 of the School Act (4 Comp. St. 1910, p. 4765), a child is entitled to attend a school in his own district. There are provisions in other sections whereby for purposes of convenience such child may be assigned to another school, but they are exceptions not in the enacting clause, which need not be negatived by the relator but should be invoked by the respondent. State v. Terry, 73 N. J. Law, 554, 64 A. 113; State v. Reilly, 89 N. J. Law, 627, 628, 99 A. 329; Wheatman v. Andrews, 85 N. J. Law, 107, 112, 89 A. 285, where other cases are collected.

The next three grounds may be considered together. No. 2 is that the writ does not aver that relator has no other legal remedy; No. 3 that it fails to show that relator has exhausted his right of appeal to statutory tribunals; and No. 4 that relator has a specific and adequate remedy under other provisions of the School Act, referring, of course, to hearings before the higher school officials and boards of the county and state. Stockton V. Board, 72 N. J. Law, 80, 59 A. 1061; Jefferson v. Board, 64 N. J. Law, 59, 45 A. 775.

It is, of course, true, as a general rule of pleading in mandamus cases, that the alternative writ should aver the absence of other adequate legal remedy; but in a case like the present such an averment is merely formal; for whether relator has another adequate legal remedy is a...