State ex rel. Clark v. Osborne

• Decision Date: 10 January 1887
• Citation: 24 Mo.App. 309
• Parties: STATE EX REL. HENRY F. CLARK, Appellant, v. GEORGE L. OSBORNE ET AL., Respondents.
• Court: Missouri Court of Appeals

24 Mo.App. 309

STATE EX REL. HENRY F. CLARK, Appellant,

v.GEORGE L. OSBORNE ET AL., Respondents.

Kansas City Court of Appeals, Missouri.

Jan. 10, 1887.

APPEAL from Johnson Circuit Court, HON. NOAH M. GIVAN, Judge.

Reversed and remanded.

The case and facts are stated in the opinion of the court.

O. L. HOUTS, for the appellant.

I. The writ should issue because relator has no other specific remedy. It is contended by respondents that Revised Statutes, section 7166, provides a specific remedy to relator, that of appeal to the board of regents. Section 7166 provides: In case of a student expelled by the faculty for “contumacy, insubordination or immoral conduct, such student shall have the same right of appeal to the board of regents as is provided in case of a professor or teacher, and the action of the board thereon shall in all cases be final.” The statute makes no provision for an appeal by a professor or teacher to the board of regents; for the reason that the jurisdiction of the board of regents over the professors and teachers is original and not appellate. The board of regents is the only body authorized to employ or discharge professors or teachers and in case a teacher or professor should be discharged by the board of regents, an appeal to the same board would be an absurdity. It follows, therefore, that if a student should be expelled by the faculty, no appeal or other specific remedy is provided; for the student has the same right of appeal to the board of regents, as is provided in the case of a professor or teacher. The professor and teacher has no right of appeal, therefore, the student has none.

II. The rule in question is not a reasonable and proper one, or within the proper sphere of action of the school officers; and is in no way connected with the proper management and successful operation of the school. Dritt v. Snodgrass, 66 Mo. 286; Trustees of School v. People, 87 Ill. 303; Murphy v. Board of Directors, 30 Iowa, 429.

III. “The directors of a school district are invested with power and authority to make and execute all needful rules and regulations for the government, management, and control of such schools as they may think proper, not inconsistent with the laws of the land.” A board of regents and faculty of a state normal school are vested by the statutes with no greater power. Normal schools, like public schools, every child within certain ages has a right to attend under the law, subject only to reasonable rules. Directors of a school district have no authority to prescribe such a rule as the one in question. The rule cannot then be enforced in a normal school for the same reasons. Dritt v. Snodgrass, supra. ( a) Only private institutions, by virtue of a contract to that effect, can prescribe and enforce such a rule.

SAMUEL P. SPARKS, for the respondent.

I. From the action of the faculty for the expulsion of his daughter, appellant had a right to appeal to the board of regents. 2 Rev. Stat. 1879, sect. 7166, p. 1413. Where there is an adequate specific legal remedy, mandamus will not lie. Mansfield v. Fuller, 50 Mo. 338; Moses on Mandamus, [Ed. 1867] 124. High's Extraordinary Leg. Rem. [Ed. 1884] sect. 10, p. 15.

II. The pivotal point in this case is, was the rule a reasonable one and within the sphere of the authority of the board of regents? It is not contended but that the rule was salutary and a necessary regulation for the conduct of students from abroad, not under parental protection, but that it was not within the sphere of the authority of the board to adopt a rule for students residing with their parents, however salutary, so as to supersede the authority of the parent outside of school hours and after they had returned to their parents' control. A rule ex vi termini applies to all, without respect to person, who fall within its prescription, otherwise it is not entitled to be dignified with that name. The questions involved in this case are diminished to the single question: Had the regents the power to make a rule which should prescribe the conduct of a pupil in any case while under the parental roof or personal control of the parent? If they had, that is an end of the case, and the action of the circuit court should be sustained.

III. The claim involved in the petition, that resident students should be governed by a special code of rules, is absurd. Not only would it increase and greatly complicate the difficulties of controlling non-residents, by according superior rights and privileges to those who happen to be residents of the community, but it would also place in the hands of the latter unlimited facilities for injuring the school without providing a means of redress. For a state institution to admit such a principle, would be to warm within its own bosom a viper which would ultimately sting it to death.

IV. The claim that the authority to control does not extend beyond the school grounds, nor longer than the number of hours usually considered a school day, as the petition further assumes, is equally absurd, from the very nature of the case. The students occupy nearly the whole day in recitation. If lessons are prepared at all, the work must be done out of school, and during time not usually reckoned as school hours. Besides, the sources of corruption and moral pollution which endanger the life of any school of its class, lie without and beyond the school house walls. Sensible parents will not entrust their sons and daughters to the care of a school that lacks the power to guarantee proper moral and physical protection, as well as good intellectual training.

ELLISON, J.

This is an application for mandamus, the relator being a citizen residing within the limits of the State Normal school district number two, and is the father of Rosa Clark, a minor aged sixteen, residing with him, under his care, guardianship and control, and was, prior to the grievances set out in the petition, attending said school, as a pupil, duly enrolled as such, with the consent and by direction of relator. Respondents are the faculty and teachers of said school. The petition, continuing, states, that on said fourteenth day of March, 1884, while said Rosa Clark, relator's said daughter, was a pupil in said school and being instructed in the several branches of learning there being taught therein, the said respondents, as such teachers, professors and members of the faculty aforesaid, not regarding their duties in the premises, wrongfully, illegally, oppressively, wilfully, in abuse of their authority and contrary to law, and without just cause or excuse, did strike from the rolls of said school the name of said Rosa Clark, and then and there dismissed and expelled her from said school, and refused and still refuse to instruct, teach or in any manner recognize her as a pupil in said school, or to allow her to recite or take part in any of the exercises therein, for the following reason, and none other, to-wit:

“That said Rosa Clark did, previous to the date aforesaid, in the evening, after the said school had been dismissed for the day, and after she had returned from the school to her said father's home, and while under the care and control of her said father, attend, in company with...