State ex rel. Ronish v. School Dist. No. 1 of Fergus County

• Decision Date: 29 January 1960
• Docket Number: No. 10116,10116
• Citation: 348 P.2d 797,78 A.L.R.2d 1012,136 Mont. 453
• Parties: , 78 A.L.R.2d 1012 STATE of Montana ex rel. Donald E. RONISH, Petitioner and Respondent, v. SCHOOL DISTRICT NO. 1 OF FERGUS COUNTY, a body corporate and political subdivision of the State of Montana and Frank Savage, Respondents, and Appellants.
• Court: Montana Supreme Court

Page 797

348 P.2d 797

136 Mont. 453, 78 A.L.R.2d 1012

STATE of Montana ex rel. Donald E. RONISH, Petitioner and Respondent, v. SCHOOL DISTRICT NO. 1 OF FERGUS COUNTY, a body corporate and political subdivision of the State of Montana and Frank Savage, Respondents, and Appellants.

No. 10116.

Supreme Court of Montana.

Submitted Jan. 11, 1960.

Decided Jan. 29, 1960.

Charles E. Marshall, County Atty., Peter L. Rapkoch, Deputy County Atty., Lewistown, for respondents and appellants. Peter L. Rapkoch, Deputy County Atty., argued orally.

Donald E. Ronish, Lewistown, pro se, for petitioner and respondent.

CASTLES, Justice.

This is an appeal from an order, of the district court of Fergus County, directing a peremptory writ of mandamus to issue against the appellant school district through its board of trustees, hereinafter referred to as the Board. The writ directed the Board to 'forthwith admit Debra D. Ronish to the first grade of Lincoln School.'

The facts are not in dispute. Petitioner's daughter, Debra Ronish, was five years old when the school term commenced in September of 1959, having been born November 18, 1953. Prior to the commencement of this term, the petitioner requested that the Board admit Debra to the first grade of the public grade school within their district. This request was denied. On November 18, 1959, Debra's sixth birthday, the petitioner again requested that Debra be allowed to enter the first grade. This request was also denied. During the interval between the first refusal and November 18, Debra had been placed in kindergarten which is tax supported and free to those children residing within the boundaries of School District No. 1.

Following appellant's second refusal, petitioner sought and obtained an alternative writ of mandamus ordering the Board to show cause why it should not admit Debra to the first grade. The Board answered alleging that its refusal was based upon a rule which the school district had adopted to control admissions to the first grade. This rule reads as follows 'Age for Enrollment. The following regulations have been adopted by previous boards for the admittance of kindergarten children:

'1. A child must be five years of age on or before October 31 to be enrolled in the kindergarten, and in case of special request by parents, admittance be extended to November 15, providing that a test be administered to children whose birthdays fall between November 1 and November 15, inclusive, and that parents be discouraged in asking admittance of children whose birthdays fall between November 1 and November 15.

'The same regulation is to apply to children entering the first grade and who have not had kindergarten training.'

This rule had been interpreted to mean that a child who reached the age of six years prior to November 15 would be admitted to elementary school at the commencement of the fall term in September. Debra missed the date by but three days.

The Board also alleged, and it is conceded, that petitioner had not exhausted his administrative remedies by appeal to the county superintendent of schools and the state superintendent of schools. The Board then alleged that since petitioner had not exhausted his administrative remedy that he had a plain, speedy and adequate remedy at law and the extraordinary writ should not lie.

On November 27, 1959, the district court issued a peremptory writ of mandamus from which this appeal is taken. As before related the district court commanded the entrance of Debra to be made 'forthwith'. No return to the writ issued by the district court was made by the Board, but an appeal was immediately noticed. The Board obeyed the writ in part on November 30 by admitting Debra to the first grade of Lincoln School, but on December 9 filed a notice of appeal, and on December 14 applied to this court for a stay of proceedings which was granted. In the order granting the stay, this court shortened the time for the filing of briefs and set the matter for oral argument on January 11, 1960.

On December 30, 1959, the petitioner, respondent here, filed a motion to dismiss the appeal contending that the question is now moot because the Board complied, in part, with the mandate of the district court as previously related. We shall discuss the motion to dismiss first.

Petitioner relies on Gill v. Liquor Control Board, 133 Mont. 505, 326 P.2d 974, and State ex rel. Hagerty v. Rafn, 130 Mont. 554, 304 P.2d 918, as authority for the motion to dismiss on the ground of mootness. Both of these cases involved liquor licenses which were issued as a result of district court writs commanding their issuance. Both opinions were three to two decisions. In the Hagerty case, Justice Adair and Justice Angstman dissented. In the Gill case, Justice Angstman and the writer dissented. In the Hagerty case, no stay of proceedings was had. In addition the Liquor Board had made its return to the district court showing compliance with the writ. In the Gill case, 133 Mont. at page 511, 326 P.2d at page 977 a majority of this court said: 'Had the Board wished to preserve its right of appeal it could have done so by filing a petition for supersedeas with this court. Having failed to do so they cannot now complain they have lost their right to appeal.' By this statement, the court clearly indicated that a failure to stay proceedings by petition to this court made the question a moot one.

We think, however, that the instant case goes beyond the rules announced in the Gill and Hagerty cases. Here the basis for the writ issued by the district court was that the trustees had no authority to set rules as will be hereinafter discussed. The ruling was not limited to the single child involved, but was so broad and all inclusive as to limit the trustees from any discretion in the matter of admittance. It is because of this continuing character of the ruling that we granted a stay of proceedings, even though informed that the child in question was admitted. The trustees stated that they had no desire to make this particular child a 'pawn' in a legal dispute over their discretionary power. They are to be commended for their concern for the individual child.

These factors cause us to deny the motion to dismiss:

(1) The continuity and all-inclusiveness of the court's order;

(2) The fact that no return was made to the lower court prior to a stay application;

(3) The stay having been granted by this court;

(4) The fact that the lower court's writ was complied with but partially; and

(5) That the matter is of great public interest and concern.

The merits of the matter present this question: Does a school board have power under our Constitution and statutes to set an arbitrary date, after the beginning of a school term, after which a child who reaches his sixth birthday may not be admitted for that particular term?

We note at the outset a dearth of authority regarding the power of a school district to set minimum age requirements in the absence of specific statutory authority or under constitutional and statutory provisions similar to ours. Our research has disclosed only one case in which the court held that the school district had that power. In Board of Education v. Bolton, 85 Ill.App. 92, the Illinois Court held such power to be proper under a statute which read:

'It shall be the duty of the board of directors of each district: * * *

'Fifth.--To establish and keep in operation * * * a sufficient number of free schools for the accommodation of all children in the district, over the age of six (6) and under twenty-one (21) years, and shall secure for all such children the right and opportunity to an equal education in such free schools.' Ill.Rev.Stat., (1896) Chap. 122, Art. V, section 26, par. 5.

That court adopted the so-called 'rule of reason' in their interpretation of the statute.

The Supreme Court of Colorado has 'assumed without deciding' that a school board has such power. Simonson v. School Dist. No. 14, 127 Colo. 575, 258 P.2d 1128. The Constitution of Montana has these provisions which we think have a bearing on the subject of our inquiry.

Article XI, § 1, provides: 'It shall be the duty of the legislative assembly of Montana to establish and maintain a general, uniform and thorough system of public, free, common schools.'

Article XI, § 7, provides: 'The public free schools of the state shall be open to all children and youth between the ages of six and twenty-one years.'

R.C.M.1947, § 75-2004, is as follows:

'Who may attend. Every public school not otherwise provided for by law shall be open to the admission of all children between the age of six and twenty-one years * * *.'

The school day, the school month and the school year are provided for in sections 75-2201, 75-2202 and 75-2203. As to the school year, the legislature has simply provided a requirement of six months as a mimimum school year.

Section 75-1632 lists the duties of trustees, setting out 24 separate duties, all going to establish an important public trust, with considerable discretion lodged in the trustees. Subdivisions 1 and 10 provide: 'Every school board unless otherwise specifically provided by law shall have power and it shall be its duty:

'1. To prescribe and enforce rules not inconsistent with law, or those prescribed by the superintendent of public instruction for their own government of schools under their supervision. * * *

'10. To suspend or expel pupils from school who refuse to obey the rules thereof, and to exclude from school, children under six (6) years of age where the interest of the school requires such exclusion.'

It will be seen from the foregoing sketchy quotations of pertinent constitutional and statutory provisions that (1) the Legislature has not attempted to spell out dates of admission, (2) that it has given school boards broad powers with a line of administrative authority through the county superintendent of schools to the state superintendent of...