State ex rel. Seidl v. Jefferson County Bd. of Ed.

• Decision Date: 15 March 1977
• Docket Number: No. 37549,37549
• Citation: 548 S.W.2d 853
• Parties: STATE of Missouri, ex rel. Joy SEIDL et al., Respondents, v. JEFFERSON COUNTY BOARD OF EDUCATION, Arthur Nahlik, President, et al., Appellants. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 853

548 S.W.2d 853

STATE of Missouri, ex rel. Joy SEIDL et al., Respondents, v. JEFFERSON COUNTY BOARD OF EDUCATION, Arthur Nahlik, President, et al., Appellants.

No. 37549.

Missouri Court of Appeals, St. Louis District, Division Two.

March 15, 1977.

Anderson, Brooking, Hammon & Dieffenbach, John W. Hammon, Hillsboro, for appellants.

Pannell, Dodson & Robinson, R. J. Robinson, Festus, for respondents.

McMILLIAN, Presiding Judge.

Appellants, Jefferson County Board of Education (Board), appeals from an order issued by the circuit court of Jefferson County, Missouri, issuing a peremptory writ of mandamus, commanding it to reassign respondents' children to the Festus School District.

The Board contends that the court erred because respondents neither pleaded nor proved an abuse of discretion, nor sufficiently specified the relief sought. It further argues that respondents have only a doubtful right to the remedy sought; consequently, the writ should not issue.

Respondents contend that it was within the discretion of the Board to determine the relative accessibility of the schools and that the order was properly issued upon a finding of abuse of discretion. Both parties expend much effort on appeal arguing the facts of accessibility. The Board claims that the DeSoto schools are more accessible and therefore the order is in error, while respondents claim that the Festus schools are more accessible.

An amicus curiae brief, prepared on behalf of the DeSoto Public School District, raises one additional issue. It claims the cause is moot on account of a change in conditions and because the school year 1974-75, which was the subject of the peremptory writ, is now passed.

A simple set of facts is the basis of this litigation. On July 12, 1974, the board met to consider the applications for transfer of certain school pupils. Section 167.121, RSMo 1959 (Amended by Laws 1973, effective July 1, 1974), provides:

"If any pupil is so located that a school in another district is more accessible, the county board of education shall assign the pupil to the other district. The board of education of the district in which the pupil lives shall pay the tuition of the pupil assigned. The tuition shall not exceed the pro rata cost of instruction."

Testimony at trial was primarily that of board members and parents. The transcript reveals that while there was some general discussion of the applications, there was no individual inquiry into the situation of each child. The Board adjourned for about fifteen to thirty minutes and voted. Upon return, the Board announced its decision to deny all of the transfer applications. The Board president explained the Board's position in the minutes of the meeting as follows:

" '. . . the Board had a responsibility to represent all the students of Jefferson County. The action requested would not affect this group only but would establish a precedent that could have an adverse affect (sic) on all school districts within the county.' "

The testimony showed that the Board members were, at the time of their determination, unaware of the judicial interpretation given "accessibility" by the Missouri Court of Appeals, Kansas City, in the case of Haymart v. Freiberger, 498 S.W.2d 590 (Mo.App.1973). They believed that any school which provided bus transportation was accessible. One board member stated that mileage was not a consideration. Fear of setting a precedent for other transfers was the most cited reason for denial.

At trial both sides introduced evidence seeking to prove that one school was more accessible than the other. They discussed the safety of Highway 110, over which the children must travel to reach the DeSoto schools, the availability of after-school activities at each school, and the accessibility to a hospital for a diabetic child. Evidence on the mileage from homes to school was estimated and presented. The total amount of time children would spend away from home each day was considered.

On July 23, 1975, the circuit court issued the writ ordering the reassignment of five children. The court found that the remaining children were attending schools equally accessible as the Festus schools and did not include them in the order. We find that the Board failed to exercise its discretion in this matter because it did not consider the statutory factors under § 167.121, RSMo 1959 As Amended. We further find, that the circuit court should not have made its writ peremptory, commanding the Board to reassign respondents' children. But rather should have remanded the cause to the Board and ordered them to proceed in accordance with § 167.121, RSMo 1959.

The amicus curiae brief contends that this cause is moot. Were this so, we would proceed no further in consideration of the case. As a general rule courts will not decide moot cases but will dismiss them. Personal Fin. Co. v. Day, 349 Mo. 1139, 164 S.W.2d 273 (Mo.1942); Joplin Waterworks Co. v. Jasper Co., 327 Mo. 964, 38 S.W.2d 1068 (1931); State ex rel. Donnell v. Searcy, 347 Mo. 1052, 152 S.W.2d 8 (1941); Preisler v. Doherty, 364 Mo. 596, 265 S.W.2d 404 (Mo.1954); Tootle v. Tootle, 362 S.W.2d 760 (Mo.App.1962) and State ex rel. Weber v. Vossbrink, 333 S.W.2d 298 (Mo.App.1960). We do not, however, agree that the cause is moot.

State ex rel. Weber v. Vossbrink, supra, is relied upon to support the contention. There, as here, a writ of mandamus was sought to require reassignment of children to a high school outside of the district in which they lived, on the ground that it was more accessible. While the case was pending the children attended and graduated from the out-of district school, with the parents paying tuition. This court dismissed the case stating: "It is clear that to require the respondent to assign the petitioners to the University City High School would be compelling a useless act. . . . " Id. at 301. The court found that the only remaining controversy was a claim by the parents against the school district for reimbursement of the tuition paid and that this claim should be brought in a separate action. While it is true that the school year for which the writ was issued has passed, the children in the instant case are still attending school. To reassign them now would not be a useless act.

The principles that decide this issue were set forth by this court in Western Auto Supply Co. v. Banner, 288 S.W.2d 402 (Mo.App.1956):

"It is a firmly entrenched and fundamental principle of law that a cause is moot when the question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, could not have any practical effect upon any then existing controversy . . . and neither the trial nor appellate courts will attempt to determine moot or pretended causes...