State ex rel. Clark v. Osborne

• Decision Date: 10 December 1888
• Parties: STATE ex rel. H. F. CLARK, Respondent, v. GEORGE L. OSBORNE et al., Appellants.
• Court: Kansas Court of Appeals

32 Mo.App. 536

STATE ex rel. H. F. CLARK, Respondent, v. GEORGE L. OSBORNE et al., Appellants.

Court of Appeals of Missouri, Kansas City.

December 10, 1888

Appeal from Johnson Circuit Court. --HON. CHARLES W. SLOAN, Judge.

AFFIRMED.

The case is sufficiently stated in the opinion of the court.

Samuel P. Sparks, for the appellants.

(1) The board of regents of the state normal schools are state officers within the meaning of the constitution. State ex rel. v. Dillon, 90 Mo. 229; State ex rel. v Valle, 41 Mo. 29; State ex rel. v. McKee, 69 Mo. 308. It follows that the supreme court alone had jurisdiction to determine the question whether the circuit court erred in refusing the application of the regents to be made parties. (2) This proceeding is upon the theory that defendants are public officers, for except the faculty is some sort of public officers, and some sort of official duty is sought to be enforced, mandamus will not lie since this remedy cannot be used against them in their individual capacity, or to enforce the performance of an unofficial act. High Ex. Leg. Rem. secs. 1-33 a; Moses on Mand. sec. 14; Mansfield v. Fuller, 50 Mo 338; Lampere v. Lodge, 47 Mich. 424; City v. Ramey, 59 Cal. 275; State ex rel. v. County Court, 39 Mo. 375; People v. Troy, 82 N.Y. 517; State ex rel. v. Trent, 58 Mo. 571; State ex rel. v. Tolle, 71 Mo. 647; State ex rel. v. Powell, 67 Mo. 395. If the faculty fall under the denomination of officers at all, they are state officers as distinguished from county, municipal and township, and this court is without appellate jurisdiction. (3) The relator had another, a specific and adequate ordinary remedy at law, provided by section 7166, Revised Statutes, an appeal from the action of the faculty to the board of regents. High. Ex. Leg. Rem. sec. 15; Mansfield v. Fuller, 50 Mo. 338. (4) The circuit court erred in refusing the motion of the faculty to make the board of regents parties respondent, and the board to be made parties, for the board was the real party in interest. This case is like any other suit after issue joined. R. S., secs. 3464, 3465, 3466, 3468; State ex rel. v. Jennings, 56 Wis. 113.

O. L. Houts, for the respondent.

(1) The supreme court, by the transfer of this case, has decided that this court has jurisdiction of it, and that the board of regents were not necessary parties. (2) Every proposition involved in this case was fully and fairly considered and squarely decided by this court when this case was here before. State ex rel. v. Osborne, 24 Mo.App. 309. (3) The principles involved were all settled by our supreme court long before this case arose. Britt v. Snodgrass, 66 Mo. 286.

RAMSAY J.

This is an application for mandamus filed by the relator H F. Clark, before the judge of the Johnson county circuit court on the sixth day of June, 1884, at chambers, to compel the faculty of state normal school, district number two (2) of the state of Missouri, to restore the name of one Rosa Clark upon the rolls of said school and to permit and allow her to attend said school as a student and pupil therein. An alternative writ was issued returnable to the June term, 1884, at which term the respondents (appellants herein) appeared and filed a demurrer to the alternative writ alleging two grounds, to-wit: " First, because said alternative writ does not state facts sufficient to entitle relator to the relief sought therein, or constitute any cause of action against respondents (the faculty); second, because relator has another specific legal remedy." The court sustained such demurrer and rendered judgment against the relator, from which he appealed to the supreme court of this state. On motion of respondents (the appellants herein) the cause was transferred from the supreme court to this court, where, on January 10, 1887, a decision was rendered in this court, reversing the judgment of the lower court and remanding the cause with leave for respondents to file answer to said alternative writ. See State ex rel. v. Osborne, 24 Mo.App. 309, where the facts alleged in relator's application, and in the alternative writ are sufficiently set forth to obviate the necessity of an extended statement here. It may be well to say that Rosa Clark, a daughter of the relator H. F. Clark, as it was alleged, had been suspended and expelled by the faculty from said school for a violation of rule nine theretofore adopted by the faculty and by the board of regents of said normal school which rule was as follows: " 9. Students are prohibited from attending parties, entertainments or places of public amusement, except by permission." On the sixteenth day of June, 1887, the respondents (appellants herein) appeared in the circuit court of Johnson county, to which the cause had been remanded; and filed their return to the alternative writ, also a motion to have the members of the board of regents made respondents in the case. The return, among other things, alleged that the respondents (faculty) held their employment and exercised the function of their office, by virtue of the employment of the board of regents and in subordination to their will and control. After stating the names of the different members of the board of regents, it was further alleged: " That the said board of regents are the real parties in interest and they ought to be made and are necessary parties to a complete and proper determination of the matters alleged in said writ." And as a justification for the act of expulsion, which was admitted, the return further alleged: " She (meaning Rosa Clark) was admitted as a pupil in said school and being so a member, on or about the said fourth day of March, 1884, without the permission or desire of respondents, or either of them being asked or given, but against their will, did attend, at night, a social party, to-wit, a dance at Empire Hall in said city, a place kept and maintained for hire for public amusement, and in so doing did violate rule number nine, hereinbefore set out, and when the said Rosa was brought before respondents, upon a charge of violating said rule number...