The State ex rel. Kelleher v. Board of President And Directors of St. Louis Public Schools

• Decision Date: 12 May 1896
• Parties: The State ex rel. Kelleher et al., v. Board of President and Directors of St. Louis Public Schools et al
• Court: Missouri Supreme Court

35 S.W. 617

134 Mo. 296

The State ex rel. Kelleher et al., v. Board of President and Directors of St. Louis Public Schools et al

Supreme Court of Missouri, Second Division

May 12, 1896

Peremptory writ awarded.

Charles T. Noland and Houghton & Brownrigg for relators.

Charles B. Starke and Rowell & Ferriss for respondents.

Gantt P. J. Sherwood and Burgess, JJ., concur.

OPINION

Mandamus.

Gantt P. J.

This is an original proceeding commenced in this court on the twenty-seventh day of April, to obtain a peremptory writ of mandamus directed to the board of president and directors of the St. Louis public schools, and certain members of said board constituting the "election committee" of said board, requiring said board and the individual members named in the application to set aside certain appointments of judges and clerks made by said election committee on April 18, 1896, for the election of a member of said board on the fifth day of May, 1896.

The alternative writ issued, returnable April 30, 1896, and an order made shortening the time for taking proofs in support of the alternative writ.

On the return day the respondents joined in a motion to quash the writ and in a joint return.

Inasmuch as the election was appointed for the fifth of May and if the relief sought should be granted it was necessary the writ should issue promptly, if at all, upon due consideration, we directed the writ to issue prior to filing of an opinion.

The petition substantially alleges that the relators, John P Kelleher and John F. Ryan are resident taxpayers and citizens of the city of St. Louis, and reside in the tenth district as laid off and constituted for the election of a district director of the said board. That said board is a public corporation created and existing by virtue of the laws of this state for the management of the public schools of the city of St. Louis, and among other powers conferred upon it is the power "to prescribe the time, place, and manner of conducting the elections of members of said board;" that said board now consists of thirteen district directors and seven directors at large; that a vacancy exists in said board as to the district director from the tenth school district of said city; that a full board consists of twenty-one directors; that the individual respondents constitute a majority of said board at present, and have confederated together to manage and control the affairs of said corporation in their own interests and in the interest of the republican party, in utter disregard of the rights of others, and of the best interest of the public schools; that said Bus is president of said board and that respondents Lacey, Koenig, Godfrey, Landvogt, and Rebenack constitute a majority as against two other members of the committee of said board which has been appointed and has control of elections to said board, and that of this committee Messrs. Landvogt, Koenig, and Rebenack are a subcommittee, which, together with said committee, have immediate management of the conduct of the election herein mentioned; that said Bus was elected by the present majority and one member since resigned, and said election committee was appointed by said Bus, who has a deciding vote in case of a tie.

It was further averred that among other rules prescribed for the election of members of said board were the following:

"Section 2. Any convention of delegates, or any primary election as hereinafter defined by sections 5 and 6, held for the purpose of making nominations for directors of this board may nominate candidates. Said nominations shall be made by filing of certificate of nomination executed and acknowledged before a notary public with the same formalities as an instrument affecting real estate; the certificate of nomination, which may consist of one or more writings, shall contain the name of the person nominated, his residence and occupation and also the name and address of each signed. The certificate may also designate by name the party or principle which such nominee shall represent."

"Section 5. A convention of delegates within the meaning of above section 2 is a convention of delegates of any organized party which at the last school election for directors or at the last national, state, or city election shall have cast at least three per cent of the entire vote cast in the city or district for which the nomination is made.

"Section 6. A primary election within the meaning of said section 2 is an election held within the city or district as the case may be by members of any political party or by the voters of some political faith for the purpose of nominating candidates for directors provided that the said party shall have cast at least three per cent of the entire vote cast within the city or district for which the nomination is made."

It is further alleged that relator Kelleher has been duly nominated for district director in said board from the said tenth district by a primary election held by the democratic party of said district and his nomination duly certified and filed in accordance with said rules; that the democratic party is an organized political party and cast more than three per cent of all the votes cast at the last school, national, state, and city elections within said district and city; that said Kelleher possesses all the qualifications required by law and the rules of said board for a director in said board; that Charles F. Mertens has likewise been nominated by the republican party of said district for the said vacant directorship.

It is further represented to the court that the object and intent of creating said board was to place the control of the school affairs of said city beyond the domination of any political party and to secure for the management thereof men of integrity, ability, honesty, and fairmindedness who would in all cases be guided in their administration of said affairs by the true interests of the people and children of said city and not by the dictation of political party or cliques; that the majority of said board and the election committee, with one exception, are all members of the republican party; that before Messrs. Landvogt, Vordtriede, Spinning, Godfrey, Koenig and Kessner were nominated by the republican party for their positions in said board they pledged themselves that if elected they would go into a caucus of the republican members of said board and be guided in their action as members thereof by said caucus, and so shape their conduct as to promote the interests of the republican party.

It is then averred that said subcommittee on elections did on or about the eighteenth day of April, 1896, appoint the judges and clerks for said election to be held on May 5, 1896, and that each and every one of said judges and clerks so appointed, forty-two in number, were strong, professed, and partisan members of the republican party, and that the expressed intent and purpose of said committee in said appointments was to control said election to the last degree in the interest of the republican party and to defeat relator Kelleher.

It further appears from the petition that prior to the appointment of said judges and clerks, said relator Kelleher appeared before said election committee and asked to be heard and to present names of reputable and qualified citizens and voters for appointment as judges and clerks of said election and was refused not only representation among said judges and clerks but was denied a hearing, and that a committee of highly reputable citizens, irrespective of party affiliations, likewise appeared before said board and were denied the right to submit a request for an honest and fair election and for the appointment of impartial judges and clerks or equal distribution of the officers of said election.

The respondents move to quash this writ for the reasons: First, that it does not set forth facts sufficient to entitle relators to the relief prayed; second, the law does not make it the duty of the board to appoint judges and clerks of different political parties; third, there is no law requiring defendants to give relators the relief sought; fourth, mandamus does not lie to revoke an appointment already made.

Reserving their right to a ruling upon their motion to quash, respondents, by leave of the court, filed their return, which admitted the citizenship of relators; their residence in the tenth district; the incorporation of the board; the vacancy of the tenth district; denied that the republican members constituted a majority of the board and that they are confederated together to control the same in the interest of the republican party; admit that Bus is president, but deny he has deciding vote in case of a tie; admit the rules concerning the nomination of directors as pleaded by relators; admit Kelleher has been duly nominated; deny that a majority of the board are members of the republican party, and a general denial of all the remaining allegations, and an averment that by virtue of its charter the board has the power to prescribe the time, place, and manner of conducting elections of its members; that under its rules a committee was appointed to select judges and clerks and selected the same and reported them and they were approved by the board; that the judges and clerks were all competent, disinterested men and qualified for their positions and were selected in the customary manner.

The evidence establishes that the board of the president and directors of the St. Louis public schools is a public corporation created by a special act of the general assembly of Missouri, February 13, 1833, and subsequent amendments thereto, including the act of March 31, 1887, fixing the number of directors at twenty-one, seven to be...