State ex rel. Biggs v. Penter
| Decision Date | 03 November 1902 |
| Parties | STATE OF MISSOURI ex rel. E. M. BIGGS, Respondent, v. ELI PENTER et al., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. John A. Hockaday, Judge.
AFFIRMED.
Judgment affirmed.
C. B Sebastian for appellants.
(1) The demurrer should have been sustained. The petition and writ both show that the board of directors acted within the scope of their authority under the school law. The question of whether the relator was a resident or non-resident called for the exercise of judgment and discretion; it was a question upon which the board must have evidence and pronounce a conclusion. State ex rel. v. Board of Health, 103 Mo. 28; State ex rel. v. Smith, 105 Mo. 9. (2) The injury complained of is a private one. It does not pertain to the public. It is one for which he has a remedy at law. There is no evidence even tending to show that the defendants or any one of them were guilty of gross and palpable violation of the discretion confided to them by the school law. School District v. Matherly, 84 Mo.App. 140; School District v. Matherly, 90 Mo.App. 403.
Ev. M Bass and Wellington Gordon for respondent.
(1) We hold that in all such cases, mandamus is the only adequate remedy, and our courts, upon the issues made, hear the testimony and render their judgments as in all other contested trials. State ex rel. v. Hamilton, 42 Mo.App. 24; State ex rel. v. Smith, 64 Mo.App. 313. (2) "That mandamus against the board is the proper remedy, in case of an illegal expulsion of a child from a public school, has been frequently decided by this court and other courts in this State." In the matter of Rubenack 62 Mo.App. 8; State ex rel. v. Osborn, 32 Mo.App. 536, and citations. (3) It is the remedy resorted to in other jurisdictions. High's Ex. Legal Remedies (2 Ed.), sec. 332, and cases cited in note 4. Glencoe v. People, 78 Ill. 382. (4) Counsel contends that the board is answerable in mandamus proceedings, only when a public right is violated, by the exercise of their judgment, and that the injury here is a private one, for which there is a remedy at law, and therefore mandamus does not lie. This, if ever the law, has long since been discarded, by both our text-writers and courts. State ex rel v. Wright, 10 Nevada 167; 24 Mich. 469; High's Ex. Legal Remedies (2 Ed.), sec. 10, and citations. (5) The contention of appellants' counsel, in his third point, is hardly worthy of notice, since the universal practice seems to be that mandamus directed against the individuals, in their corporate capacity, is virtually the same as if directed against the corporation in its corporate name. High's Ex. Legal Remedies (2 Ed.), sec. 442, and citations; State ex rel. v. Wright, 10 Nevada 168.
--Relator claiming to be a citizen of the town of Ashland, Boone county, Missouri, seeks to compel defendants, who are the directors of the Ashland School District, to admit his five children to the school of such district without tuition. The finding of the trial court was for relator and a peremptory mandamus was issued.
The children had entered the school, but the defendants being of the opinion that they were not residents of the district, notified relator to appear at a meeting of the directors and show cause why he should not pay tuition for them on the ground of non-residence. Relator did not appear at such meeting. He was then notified that his children were excluded from the school. Another meeting of the board was called at relator's request at which he was present. They were unable to agree on relator's residence and after some dispute as to whether relator should sign an affidavit prepared for him on the question of residence, the determination to exclude the children was adhered to, whereupon relator instituted this proceeding as aforesaid.
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