State ex rel. Best v. Jones

• Decision Date: 30 March 1900
• Citation: 56 S.W. 307,155 Mo. 570
• Parties: STATE ex rel. BEST et al., Appellants, v. JONES et al
• Court: Missouri Supreme Court

56 S.W. 307

155 Mo. 570

STATE ex rel. BEST et al., Appellants, v. JONES et al

Supreme Court of Missouri, First Division

March 30, 1900

Appeal from Montgomery Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

Warner Lewis & Son for appellants.

(1) Two courses are open to the respondent in making return to an alternative writ of mandamus, to-wit: He may either traverse substantially the suggestions of the alternative writ, or he may confess and avoid, as he chooses, but he can not adopt both in the same pleading. High on Ex. Rem. (2 Ed.), secs 460, 461, 466, 467; Donohoe v. Heidel, 33 Mo. 336; Atterberry v. Powell, 29 Mo. 429; Adams v Trigg, 37 Mo. 141; McCord v. Railroad, 21 Mo.App. 92; Bacon's Abridg. I; Prince Stra., 1235. (2) If we treat the return as a confession and avoidance, it is wholly insufficient, because the matter set up in avoidance is a substitution of the discretion or judgment of the board in establishing and maintaining a high school, which is permissive only, for that provision of the law which is mandatory and peremptory concerning ward schools. State v. School Board, 74 Mo. 21; State v. School Board, 131 Mo. 505; State v. Lane, 9 Wis. 279. It can not be regarded in any sense as traverse or denial for the reasons and authorities above mentioned and cited. (3) There is no merit in the question raised by the respondents concerning the negro school, for by both the Constitution and the laws enacted thereunder, the schools for "white" and "colored" children are as separate and distinct as if controlled by different boards of education. The only point of similarity is, they shall have like privileges and advantages under like conditions. The Constitution makes no mention of "white" children, but does mention "African" children as a class. Where color is omitted "white" children, or "white schools" will be understood; and since the same conditions do not exist as to the colored school as of the white in the district, it can not be considered in this case. Sec. 3, art. 2, Constitution.

J. D. Barnett for respondents.

MARSHALL, J. Robinson, J., absent.

OPINION

MARSHALL, J.

The defendants are the directors of the school district of the town of Montgomery City, which district was duly organized under provisions of article 2, chapter 143, Revised Statutes 1889. The relators are resident tax-paying citizens of said school district, and patrons of the schools therein, and as such prosecute this proceeding by mandamus to compel the defendants to divide said district into as many wards as there are school buildings in said school district, in the branches and in the manner and form directed in said section 8023, "so that the children in the school district will not be compelled to pass one school building in order to reach another school building where the school is held and thereby have to travel long distances through exposed and dangerous places of the streets and railroad crossings of said town of Montgomery City, to the great damage and injury of all children of the district and mental anxiety of their parents, and especially the damage and injury of the children of the plaintiffs, and their mental anxiety."

The return to the alternative writ shows that there are three school buildings in the school district, one of which is used for the colored children, one for the white children in the primary grades, that is, the grade of studies enumerated in section 8023, and the third for white children for a school of higher grade than the studies enumerated in section 8023; that the school for primary grades is amply sufficient to accommodate all the school children of the school district within such primary grades, as is also the school for the higher grades; that the directors are not able with the school funds provided to establish other schools for primary grades, nor is there any demand or necessity therefor.

To this return the relators demurred, the reasons assigned, other than those raising technical questions of pleading, being that the directors had substituted their discretion in establishing a high school instead of obeying the mandates of the statutes and establishing more primary schools.

The circuit court overruled the demurrer to the return, the relators refused to plead further, and stood on the demurrer, final judgment was entered for the defendants on demurrer, and relators appealed.

I.

Respondents move in this court to dismiss this appeal, because the abstract does not comply with rules 12 and 13. The case is here on a complete transcript and the abstract sets out in full the alternative writ of mandamus, the return and the demurrer, and also a motion for a new trial and in arrest (which were entirely superfluous in this case) and also shows that relators excepted to the ruling of the court on demurrer, and that an appeal was granted. The alternative writ, the return thereto, the demurrer and the judgment of the court were all parts of the record proper and are open to review in this court. [McKenzie v. Donnell, 151 Mo. 431, 52 S.W. 214.]

II.

The proposition involved in this case is whether school directors can be compelled by mandamus to use the school funds to establish more primary grade schools, when those already established are sufficient to accommodate all children within the primary grade in the district, in order that such schools may be more accessible to the residence of some of the children in the district who are now compelled to "go long distances through exposed and dangerous places of the streets and railroad crossings," or whether having supplied an adequate number of primary grade schools, the directors can use what remains of the school funds to supply a high school.

The alternative writ does not assert that the primary grade schools already established are at all inadequate or insufficient, but proceeds entirely upon...