State ex rel. Green v. Brown

CourtCourt of Appeal of Missouri (US)
Citation31 S.W.2d 215,224 Mo.App. 1197
Decision Date15 September 1930

Mandamus. Original proceeding.


Judson Green, Henry & Remmers and John R. Green for relators.

(1) This court has jurisdiction of these mandamus proceedings. Constitution of Missouri, art. VI, sec. 12; School District v. Boyle, 182 Mo. 347, 81 S.W. 409. (2) Mandamus is the proper remedy to compel the admission of children of a resident of a school district to the schools of the district when the children have been excluded because of the parent's refusal to pay tuition for them. State ex rel. Biggs v. Penter, 96 Mo.App. 416; State ex rel. Roberts v. Wilson et al., 221 Mo.App. 9, 297 S.W 419; In the Matter of Rebenack, 62 Mo.App. 8; State ex rel. Crain v. Hamilton et al., 42 Mo.App. 24; State ex rel. v. Osborne et al., 32 Mo.App. 536; State ex rel. v. Osborne et al., 24 Mo.App. 309; See cases collected in 39 A.L.R. 1019 (note) and in 38 Corpus Juris 734-735. (3) The present suits are directed against the proper parties. State ex rel. Rutledge et al. v. St. Louis School District et al., 131 Mo. 505. The respondent school district in the above case was one created by a special charter. (4) The legal effect of the extensions of the limits of the city of Kirkswood was to extend ipso facto the limits fo the Kirkwood School District, rendering them co-extensive with the new limits of the city of Kirkwood, and thus rendering these relators residents of the Kirkwood School District. R. S. 1919, sec. 11236; Litson v. Smith, 68 Mo.App. 397. See, also: School District No. 7 v. School District of St. Joseph, 184 Mo. 140; State ex inf. Lowe v. Henderson, 145 Mo. 329. (5) The injunction suits in the circuit court of St. Louis county, to which suits these relators were not parties, constitute no bar or defense to the present mandamus suits by relators, because: (a) Relators were not in privity with any of the parties in said injunction suits, and none of the parties to said suits were acting in behalf of relators. Womach v. St. Joseph, 201 Mo. 467; Perkins v. Goddin, 111 Mo.App. 429; Handlan v. Wyckoff & McMahon, 293 Mo. 682; Van Hafften v. Clayton, 259 S.W. 530. (b) Respondent, the Kirkwood School District, filed said injunction suits solely for the purpose of submitting to adjudication the question whether or not the extensions of the limits of the city of Kirkwood had the effect of extending the limits of the Kirkwood School District to the same extent; and respondent did not file or prosecute said suits with any real desire to win them or to establish any rights of your relators or of other residents of the territories in question, but desired solely to obtain an adjudication which would protect respondent school district in relation to said territories. Simpson County v. Buckley, 85 Miss. 713, 38 So. 104; Lindsay v. Allen, 112 Tenn. 637, 82 S.W. 171; People ex rel. Childress v. Illinois C. R. Co., 298 Ill. 516, 131 N.E. 624. (c) The court's findings and decrees for defendants in said suits were not upon the merits of the legal questions involved, but were merely the exercise of the court's discretion to withhold the equitable relief prayed for, taking into consideration the facts that, (1) it appeared upon the face of the petitions that respondents herein had an adequate remedy at law; (2) the injunctive relief prayed for in said suits was broader and more extensive than that to which respondents would have been entitled, even if the court had held that the extensions of the limits of the city of Kirkwood had had the effect of extending the limits of the Kirkwood School District to the same extent, and (3) respondents herein had no real desire to obtain a decree, whereas the defendants in said suits were anxious to retain the territories in question. Barnett v. Smart, 158 Mo. 167, 59 S.W. 235; Munday v. Knox, 323 Mo. 411, 19 S.W.2d 487; Murphy v. Creath, 26 Mo.App. 581. (d) The interest of these relators in said injunction suits, if any interest they had, was not adverse to the interest of respondents herein in said suits. M. K. & T. Ry. Co. v. American Surety Co., 291 Mo. 92; Peters v. St. Louis, 226 Mo. 62; Charles v. White, 214 Mo. 187; Womach v. St. Joseph, supra; Spear v. Bremerton, 90 Wash. 507, 156 P. 825. (e) These relators were not represented by any of the parties in said injunction suits. Northern Pacific Ry. Co. v. Snohomish County, 101 Wash. 686, 172 P. 878. (f) The capacity in which relators are maintaining the present suits, namely, as parents of minor children, is different from the capacity in which they were interested, if they were interested at all, in the said injunction suits. Dibert v. D'Arcy, 248 Mo. 617; State ex rel. Hospes v. Branch et al., 134 Mo. 592; Perkins v. Goddin, 111 Mo.App. 429; Terrill v. Boulware, 24 Mo. 254; See cases collected in 34 Corpus Juris 997-998.

George F. Heege for Amicus Curiae.

(1) The Kirkwood School District operates under a special charter which prescribes a complete system for its organization and government, just as complete a system as is prescribed for (a) common schools, (b) city, town or consolidated schools, (c) city schools of 75,000 to 500,000, and (d) schools from 500,000 and up. Session Acts of Missouri, 1865, page 170. (2) The Kirkwood School District is not a city or town school district (it is special and complete in itself) any more than St. Louis or St. Joseph are city school districts within the meaning of the law. Even laws governing the St. Joseph schools do not apply to St. Louis school districts. School District No. 7 v. St. Joseph School Dist., 184 Mo. 140; State ex rel. v. Henderson, 145 Mo. 329. (3) The Legislature never intended section 11236, Revised Statutes 1919, to apply to the Kirkwood School District. This section is general in its nature. When the Legislature desired to have laws applicable to special school districts they so specifically stated. Session Acts of 1873, p. 205; Session Acts of 1893, p. 237; Session Acts of 1913, p. 719. (4) Special school districts are still recognized by the Legislature. Special school districts may surrender their charters and then be governed by the general school laws. Secs. 11,230 to 11,235, R. S. 1919; Session Acts of 1913, p. 719. (5) A general law does not repeal special local legislation, although subsequent and in conflict therewith. 1 Lewis' Southerland on Statutory Construction (2 Ed.), p. 529; Smith v. County of Clark, 54 Mo. 69; Alexander v. City of St. Louis, 23 Mo. 483; State ex rel. v. Vaughn, 99 Mo. 332; Folk v. St. Louis, 250 Mo. 135-6-7. (6) Section 11,236, Revised Statutes 1919, is a general law under laws applicable to cities, towns and consolidated school districts, and is part of chapter 102, Revised Statutes 1919. Special school districts are not governed by chapter 102, Revised Statutes 1919. Sec. 11,230, R. S. 1919. (7) Section 11,236 is void, as it is an attempt to delegate delegated authority. City of St. Louis v. Russell, 116 Mo. 248; City of St. Louis v. Howard, 119 Mo. 41.

Robert C. Powell for respondents.

(1) In order that a writ of mandamus may be available, it is essential that the relator have a clear legal right to the thing demanded, and it must be the imperative duty of respondent to perform the act required. State ex rel. v Stone, 269 Mo. 334, and cases cited therein, to-wit: State ex rel. v. City of Willow Springs (Mo.), 183 S.W. 592-3; State ex inf. v. K. C. Gas Co., 254 Mo. 532; State ex rel. v. Hudson, 226 Mo. 265; State ex rel. v. Bridge Co., 206 Mo. 134; State ex rel. v. McIntosh, 205 Mo. 610; State ex rel. v. Lesneur, 136 Mo. 459; State ex rel. v. Williams, 99 Mo. 303; State ex rel. v. Newman, 91 Mo. 451; Ex Parte Ashcraft (Mo. App.), 186 S.W. 533; State ex rel. v. Appling, 191 Mo.App. 592-3. (2) A State, county, municipality, school district or other governmental or public body of the kind, in its official capacity, is representative of its citizens and taxpayers, and a judgment for or against it, or its legal representative, in a matter of general interest to all of its citizens, is binding upon them, though they are not parties to the suit, just as in a "class" suit brought by one or more persons for themselves and all others similarly situated, upon the assumption that all citizens are represented by the public body, and, on the other hand, all parties in the same class, are privies and occupy the same relation to the subject-matter involved. State ex rel. v. Rainey, 74 Mo. 229, cited and approved in Healy v. Deering, 231 Ill. 423, 121 Am. St. Rep. 336; Harmon v. Auditor of Public Accounts, 123 Ill. 122, 5 Am. St. Rep. 505; Giblin v. Lumber Co., 131 Wis. 261, 120 Am. St. Rep. 1044; State v. McDonald, 108 Wis. 8, 81 Am. St. Rep. 881; New Orleans v. Citizens Bank, 167 U.S. S.Ct. 389; County Court of Ralls Co. v. U.S. 105 U.S. S.Ct. 734; Kaufman v. Annuity Realty Co., 301 Mo. 638; Turnverein v. Hagerman, 232 Mo. 693; Williams v. City of Hayti (Mo.), 184 S.W. 47; Taylor v. Sartorius, 130 Mo.App. 23; Payne v. Cummings, 207 Mo.App. 64. To like effect are the following cases from other States and the United States Supreme Court: Town of Tallassee v. State, 206 Ala. 169; State v. Hartford St. R. Co., 76 Conn. 174; Pear v. City of E. St. Louis, 273 Ill. 501; Ward v. Field Museum, 241 Ill. 496; Stone v. Winn, 165 Ky. 9; Orcutt v. McGinley, 96 Nebr. 619; Ashton v. City of Rochester, 133 N.Y. 187; Bear v. Commissioners, 122 N.C. 434; State v. Willis, 19 N.D. 209; Ellis v. Hodges (Okla.), 174 P. 1087; Rose v. Port of Portland, 82 Or. 541; Hovey v. Shepherd, 105 Tex. 237; State v....

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