State ex rel. Roberts v. Wilson

• Decision Date: 06 July 1927
• Citation: 297 S.W. 419,221 Mo.App. 9
• Parties: STATE EX REL. GLADYS ROBERTS, APPELLANT, v. JOHN WILSON ET AL., RESPONDENTS. [*]
• Court: Missouri Court of Appeals

297 S.W. 419

221 Mo.App. 9

STATE EX REL. GLADYS ROBERTS, APPELLANT, v. JOHN WILSON ET AL., RESPONDENTS. ^[*]

Court of Appeals of Missouri

July 6, 1927

Appeal from the Circuit Court of Texas County.--Hon. W. E. Barton Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

D. E Moberly and L. B. Shuck for appellant.

(1) (a) The court erred under the law and the evidence in this case in refusing to grant the peremptory writ. Both the refusal to sign and deliver the "certificate of attainment" and the refusal to remove the condition from Gladys Roberts' grades, in the Permanent High School Records was because of her refusal and her father's refusal to pay a tuition fee of twenty dollars, which the school district had absolutely no right to exact; and in cases where officers of a public corporation, such as a school district, refuse without just cause to do a duty, and the plaintiff is injured thereby and has no other adequate redress, then a writ of mandamus will issue as of right. Valentine v. Independent School District of Casey et al., 174 N.W. 334; R. S. 1919, Secs. 11336, 11346 and 11347; Const. Mo., art. 11, sec. 1; State ex rel. v. Clymer, 164 Mo.App. 671; State v. Selleck, 107 N.W. 1022; McNish v. State ex rel., 104 N.W. 186. (b) No school, organized as was the Elk Creek School District, under the State Public School System, and supported by the taxpayers of the school district as a public school, is entitled to charge residents of such school district tuition, whether for high school work or for grade work, and the law makes no distinction between the two. Const. Mo., art. 11, sec. 1; R. S. Mo., sec. 11336; State ex rel. v. Clymer, 164 Mo.App. 671. (c) A public school, such as the district of which the defendants are officers, is required to keep records of the students' progress, in the various subjects, in order that later teachers, or other schools to which they might go, might know their standing in their school work. Valentine v. Independent School District, 174 N.W. 334; R. S. Mo., secs. 11346 and 11347. (d) In cases where officers of a public corporation refuse to perform a duty purely ministerial, because of the infraction of an unreasonable rule, as in this case, mandamus will lie to compel the performance of such duty. Valentine v. Independent School District, supra. (e) In the case at bar, the witnesses of the defendant admit that they had the power to remove the condition from the grades and that they had the power, and that it was the custom to issue the certificates to all persons who had completed the course, as had the plaintiff, and the question reduces to one merely of whether or not the defendants had the right to refuse to perform these acts on the ground that plaintiff failed to comply with the rules of the school requiring residents of the school district to pay tuition; and that rule being unquestionably void, the alternative writ should have been issued. Const. Mo., art. 11, sec. 1; R. S. 1919, secs. 11336, 11346 and 11347; Valentine v. Independent School District of Casey ex rel., supra. (f) Both the power to sign the certificate of attainment and the corresponding duty, and the power and duty of removing the condition placed against plaintiff's grades, although not specifically required and established by statute, the law implies a clear legal duty upon the officers of such a public corporation the duty of establishing evidence of work done by plaintiff and showing credit due her, and she is entitled to the benefit of that credit without condition and to a certificate of attainment, properly signed, unless she failed to comply with some rule that the school board or principal had a right to make. Valentine v. Independent School District of Casey, supra; Bacon's Missouri Practice, sec. 1025.

Hiett, Lamar & Covert for respondents.

(1) Mandamus is an extraordinary writ and will issue only when the applicant has a clear legal right. Adair Dist. v. Quincy Co., 280 Mo. 244; State ex rel. v. Stone, 269 Mo. 334; State ex rel. v. Baird, 278 S.W. 416; State ex rel. v. Thompson, 245 Mo. 65; State ex rel. v. Willow Springs, 183 S.W. 589; State ex rel. v. Eppling, 191 Mo.App. 452; 38 Corpus Juris, par. 260, p. 691. (2) Before mandamus can be invoked, the plaintiff must show that the duty to issue the certificate was clearly and unmistakably imposed upon the school board by law. State ex rel. v. Brown, 172 Mo. 374, 382; State ex rel. v. Willow Springs, 183 S.W. 589; State ex rel. v. Eppling, 191 Mo.App. 589; State ex rel. v. Special Road District, 217 S.W. 605. (3) Before the court should issue a writ to an officer it should ascertain the officer's specific legal duty in the premises. State ex rel. v. Amerstien, 95 Mo. 159; State ex rel. v. Garshee, 65 Mo. 480. (4) The appellant took no exception to the action of the trial court in overruling the motion for a new trial and there is nothing for this court to review other than the record proper. Hope v. Hanley, 245 Mo. 352; Webber Co. v. Ransburg, 274 S.W. 856.

BRADLEY, J. Cox, P. J., and Bailey, J., concur.

OPINION

BRADLEY, J.--

Appellant relator brought mandamus to compel the principal and directors of school district No. 107 in Texas county to deliver to her an eighth grade graduation certificate, called a certificate of attainment, and to remove certain conditions upon the release of her grades for the first year of high school. Preliminary writ issued, but upon final hearing the relief asked was denied and relator appealed.

School District No. 107 is a common school district and in 1923, by its board of directors, made arrangements for a two years' high school course which was approved and accredited by the State superintendent. Relator resided with her parents in district No. 107 and completed the work required in the grades, and during the school year of 1923 and 1924 did the required work for the first year of the high school. But because relator did not pay a charge of $ 20, said charge being made by order of the board of directors, she was refused the eighth grade graduation certificate or certificate of attainment and also the release of her grades for the high school work was refused. During the school years of 1924 and 1925; 1925 and 1926; 1926 and 1927, relator attended the Cabool High School in Texas county, but cannot graduate until she has received the certificate of attainment and credit for her first year of high school work. The county superintendent made out the certificate of attainment for relator and delivered it to Roy Wall, who was then the principal of the school in district No. 107, for his signature, but Wall, by order of the then board of directors, refused to sign and deliver the certificate. All of relator's troubles respecting her grades occurred with the predecessors of the present principal and directors, except respondent Grisham who was a member of the board at the time. But before instituting the cause now here relator, through her counsel, asked the present principal, respondent Wilson, to sign and deliver to her the certificate of attainment and to remove the condition upon the release of her high school credits. Respondent Wilson thereafter discussed the matter with the respondent directors and relator's request was refused.

Prior to the school year of 1923 and 1924 district No. 107 did not maintain a high school, but between the school election of 1923 and the beginning of the school term for 1923 and 1924 the board of directors made arrangements for the purchase of the necessary equipment to maintain a two years' high school course and the high school was established and was inspected and approved by the State superintendent. There were no public funds for the purchase of the equipment required for the high school and the directors personally arranged for the equipment which amounted to about $ 400. It was ordered by the board that each pupil attending high school for the school term of 1923 and 1924 be charged a tuition fee of $ 20, which, with the aid of box suppers, entertainments, etc., it was estimated, would be sufficient to reimburse the directors for the equipment purchased. The salary of the teacher of the high school was paid out of the district funds.

Relator is a minor and no next friend was appointed. It is stated in the petition, however, that relator filed her petition "through her natural guardian and father, Joe Roberts," but his name does not appear in the caption or elsewhere in the pleadings, except as stated. In Taylor v. Mo. P. R. Co., 257 S.W. 511, we held that an infant could prosecute a cause by the father or natural guardian without the formality of having the father appointed as next friend, but no point is made here on relator's infancy hence we shall not deal further with the subject.

Under the facts will mandamus lie to compel respondents or either of them to deliver to relator the certificate of attainment properly executed and remove the condition placed upon the release of her high school credits? If the requirement of the payment of the $ 20 tuition was a proper and legal condition precedent to the delivery of the certificate of attainment then its delivery was properly refused. And the same is true respecting the removal of the conditions placed upon the release of relator's high school credits. Section 1 of article 11 of our Constitution made it the duty of the General Assembly to establish and maintain free public schools for the gratuitous instruction of all persons in the State between the ages of six and twenty years. Pursuant to this mandate free public schools have been established throughout the State, and district No. 107 is one of the free public schools established for gratuitous instruction. The right of children, of and...