State v. Keaster
| Decision Date | 28 March 1928 |
| Docket Number | 6301. |
| Citation | 266 P. 387,82 Mont. 126 |
| Parties | STATE ex rel. v. KEASTER et al. STEPHENS |
| Court | Montana Supreme Court |
Appeal from District Court, Chouteau County; Charles S. Hartman Judge.
Petition by the State of Montana, on the relation of Charles Stephens against Richard R. Keaster, and others, as Trustees of School District No. 2 of Chouteau County. Judgment for defendants and relator appeals. Reversed and remanded, with directions.
Murch & Wuerthner, of Great Falls, for appellant.
Stranahan & Towner, of Ft. Benton, for respondents.
This proceeding is an application for an alternative writ of mandate.
School district No. 2 of Chouteau county is a school district and body corporate, in which is located a schoolhouse and therein is conducted, in school season, a public school. The respondents are the trustees of the district. The relator is a resident and taxpayer thereof. He is the father of three children of school age. His home is some miles from the schoolhouse.
Relator claims that no transportation for his children has ever been provided by respondents, to enable the children to attend the district school, and that, because thereof and because of the distance from the school and the severity of the climate, he has been unable to send them to the district school and has been compelled to send them to school elsewhere; that he has often requested of respondents transportation for his children to the district school or that house or room rent, board or tuition, elsewhere, for the children be provided, all of which has been refused, although the district had sufficient money therefor and could afford it, and that the children are now in school, at his expense, in Great Falls.
Being dissatisfied with the action, in the premises, of respondents, relator appealed therefrom, by virtue of the provisions of chapter 77, Session Laws of Twentieth Assembly 1927, to the state board of education and served and filed notice of appeal, accompanied by a verified petition to the board, setting forth, as facts, the foregoing stated facts and claims and praying for relief. Respondents answered, and relator replied.
The state board of education took jurisdiction of the appeal and set it for hearing, and on the appointed day relator and respondents, by their respective counsel, appeared, and the board had a hearing. As a result, it made and issued an order, in which it is recited that:
Respondents "shall be required to pay $7.50 a month, per child, for three children, during the present school year, either for transportation in own district or for board and room in Great Falls, at the option of appellant, in view of the fact that the family moved to Great Falls without notice of transportation in own district."
Relator had served on the chairman of the board of trustees composed of respondents such order, with written notice that relator chose to use, for board and rent, in Great Falls, for his children, the payments directed to be made and written demand for the amount of such payments then due.
No payment being made, relator filed in the district court his verified petition for an alternative writ of mandate, together with an affidavit, in support thereof. In them are alleged the foregoing statements, with allegation of demand upon respondents and their refusal to pay. It is also alleged that respondents are acting in an arbitrary manner, and that relator has no plain, speedy, and adequate remedy at law. Prayer is made for the alternative writ of mandate to respondents. Attached to the petition and made part thereof are copies of all of the papers to which we have referred.
An alternative writ was issued and served. Respondents appeared by counsel and moved the court to quash the writ and dismiss the action. The motion was argued and submitted, and thereafter the court rendered its decision in favor of respondents and sustained the motion. February 2, 1928, the court made its written order to that effect. February 24, 1928, it rendered and handed down its judgment.
Relator appealed from the judgment and assigns as specifications of error: (1) That the court erred in sustaining the motion; (2) that the court erred in holding that the state board of education did not have jurisdiction to make its order; (3) that the court erred in rendering its judgment.
Without moving to dismiss, counsel for respondents suggest this appeal should be dismissed. The ground advanced for the suggestion is the contention that the appeal is taken from "a so-called judgment, purporting to have been made and entered on February 24, 1928." Counsel for respondents contend the court rendered its judgment February 2, 1928, and that if relator desired to appeal he should have appealed from it; that what they denominate the "so-called judgment of February 24, 1928," is not a judgment and was made without jurisdiction, and no appeal therefrom lies.
We do not agree with counsel. The court's order of February 2 was merely the written order, sustaining respondents' motion and ordering the writ quashed and the action dismissed. State ex rel. Montana Central Ry. Co. v. District Court, 32 Mont. 37, 79 P. 546. "Defendant [here respondents] is therefore not entitled to this judgment until after dismissal." Miller v. Northen P. Ry. Co., 30 Mont. 289, 76 P. 691. Upon the authority of the two cases cited, we say, the trial court being of the opinion the motion to quash and dismiss was well taken, the proper procedure was for the court, first, to order the writ quashed and the action dismissed; then to render judgment in accordance therewith. That it did. The judgment, rendered February 24, recites that the action had been, by order of court, dismissed and then gives respondents judgment for their costs, in the sum of $7.50. While not so explicit as it might be, it was intended to be a judgment of dismissal and for recovery of costs, and substantially it is a judgment and one for such purposes. The facts that respondents were not required by law to pay fees for court costs and had not paid any, as claimed, do not keep the document from being a judgment. Had relator been dissatisfied with that portion adjudging recovery of costs, he could have moved to modify, but that does not deprive him of his right of appeal. He had to choose between the order of February 2 and the judgment of February 24 from which to appeal, and we think he made no mistake. To hold the latter not a judgment would be highly technical and contrary to substantial justice. Counsel for respondents cite Kline v. Murray, 79 Mont. 530, 257 P. 465, but it does not sustain their contention. In that case a motion to dismiss was made. It was, first, sustained; later, judgment was rendered, as here. The only difference is that there the motion was sustained orally, in the progress of the trial; here, by written order; in each case dismissal came first, and, then, judgment. We decline to dismiss the appeal.
We take up, now, relator's specifications of error. They all amount to the same thing, i. e., contention that the trial court erred in sustaining the motion to quash and dismiss, and we shall consider them together.
The motion is based upon nine specified grounds, three of which we consider to be the most pertinent and to require particular attention. They are: (1) That the provisions of section 2 of chapter 77, Session Laws of 1927, under which relator appealed to the state board of education, are unconstitutional, and therefore the state board is without constitutional power to entertain or determine such an appeal. (2) That the subject-matter of the action is a matter of discretion with respondents, not subject to the control of the state board, and not a plain duty, performance of which may be enforced by a court mandate. (3) That the order of the state board and the notice of election of relator, in the premises, were served upon only one of respondents, and he is not empowered to act alone for the school district.
We turn, first, to the constitutional question. Chapter 77, Session Laws of 1927, first provides that, whenever the trustees of a school district deem it for the best interest of the district and the pupils thereof, they may, under certain conditions, expend any moneys belonging to the district for the transportation of pupils from their homes to the school or for their board, rent, or tuition while attending school in their own or some other district. Section 2 of the chapter comes next, and is as follows:
"If any person shall be dissatisfied with any finding or determination of * * * the board of trustees * * * under the provisions of this chapter relating to transportation, rent, tuition or board, such person may appeal from such finding or determination by written petition to the state board of education."
Section 11 of article 11 of the Constitution of Montana provides as follows:
etc.
That is the only reference in the Constitution to the state board of education, its powers, or duties.
Counsel for respondents contend that the Legislature, in prescribing the powers and duties of the board, is limited, by that constitutional provision, to prescribing powers and duties in connection with the state educational institutions, and that any other prescribed are beyond constitutional authority. Stating their contention...
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