The State ex rel. Herman v. County Court of St. Louis County

• Decision Date: 04 December 1925
• Docket Number: 26106
• Citation: 277 S.W. 934,311 Mo. 167
• Parties: THE STATE ex rel. CORNEAL HERMAN, An Infant, by JOSEPH RENARD, Her Next Friend, v. COUNTY COURT OF ST. LOUIS COUNTY
• Court: Missouri Supreme Court

277 S.W. 934

311 Mo. 167

THE STATE ex rel. CORNEAL HERMAN, An Infant, by JOSEPH RENARD, Her Next Friend, v. COUNTY COURT OF ST. LOUIS COUNTY

No. 26106

Supreme Court of Missouri

December 4, 1925

Dismissed.

A. & J. F. Lee and Joseph Renard for relator.

(1) It conclusively appears on the face of the writ that a clear and legal duty is imposed by law on the respondent to perform the specific act to which the writ is directed, and it further appears on the face of the writ that respondent is clothed with authority to perform the specific act to which the writ is directed. Therefore, the motion to quash should be denied. State ex rel. v. Taylor, 224 Mo. 468; State ex rel. v. Bollinger, 219 Mo. 204; Kirley v. Dist. Sc Board, 97 Mo.App. 614; R. S. 1919, Sec. 12866. (2) Under the law, the respondent is clothed with authority to make the payment, sought to be enforced, out of funds within its control, without the action or co-operation of other person or persons. Authorities supra. (3) The writ does not compel additional levies of taxes, but merely directs the payment of relator's tuition out of the county court's incidental funds. Authorities supra. (4) The writ does not require alternative action, but directs performance of a specific and ultimate act, which is the payment of relator's tuition, as provided by law.

John A. Nolan for respondent.

(1) It appearing on the face of the writ that no clear legal duty is imposed by law on the respondent to perform the specific act to which the writ is directed, or it appearing on the face of the writ that respondent is without power or authority to perform the specific act to which the writ is directed, the motion to quash should be sustained. State v. Albin, 44 Mo. 346; State v. Newman, 91 Mo. 445; State v. Williams, 99 Mo. 291; State v. Lesseur, 136 Mo. 452. (2) When it appears from the petition that the performance by respondent of the specific act required by the writ will necessitate the action and co-operation of other persons, not within the control of respondent, in order to effectuate the purpose sought to be accomplished, the writ should be quashed. Secs. 11142, 11159, 12860, R. S. 1919; State v. Cusenberry, 97 Mo.App. 613; State ex rel. v. Wabash Ry., 97 Mo. 296; Brooks v Schultz, 178 Mo. 222; State v. Gordon, 181 S.W 1016. (3) A petition seeking to compel the payment out of public school funds must show on its face that funds are available from which respondent is authorized to make such payment, or that respondent possesses the power to create a fund from which such payment might be made. Failing to show such facts, it is bad, and the writ should be quashed. Morrow v. Pike County, 189 Mo. 610; State v. Gordon, 181 S.W. 1016.

Ragland, J. All concur, except Otto, J., not sitting.

OPINION

RAGLAND

This cause was argued and submitted at the April term, but owing to the protracted illness and subsequent death of the member of the court to whom it was originally assigned the preparation of an opinion has been delayed until now. It is an original proceeding in mandamus. Relator is a colored person of school age residing in St. Louis County. She seeks to compel the county court of that county to pay her tuition as a pupil in the Sumner High School in the city of St. Louis. She bases her right to such relief on Section 4 of an Act of the Legislature passed in 1921, authorizing the establishment of high schools for colored children in all counties having a population of 100,000 inhabitants or more and less than 200,000. The section in question follows:

"Until such time as a colored consolidated county high school has been furnished, as provided herein, any colored person of school age, who is a resident of such county and shall have completed the course approved by the department of public instruction for the school districts in such county, such person shall be permitted to attend any public colored school in any adjoining city or county, when said pupil has met all requirements laid down by the board of education in carrying out a course of study for said high school. Any colored person applying for permission to any colored high school, under the provisions of this act, shall present to the officials of such colored high school to which he desires to attend, the affidavit of his or her father, mother or guardian that such applicant is of school age and a resident of the school district of said county, specifying the district, and that the district in which he resides does not offer a four-year high school course for colored persons. He shall also present a certificate signed by the county superintendent showing that he has completed the work in the eighth elementary grade, as set forth in the state course of study. The school district in which such student resides shall pay to the secretary of the school board in the district in which such student shall be permitted to attend a tuition fee equal to the average cost per pupil for maintaining said colored high school during such attendance, which shall not exceed, however, a total period of four years; one-half of said tuition to be paid at the beginning of the first semester and one-half at the beginning of the second semester, when the school board of the school district in which said pupil resides has received a written statement of the attendance of said pupil from any person authorized by said school board to issue said statement; if the pupil attends less than a full semester, the school district attended shall be entitled to the full tuition for the given semester; provided, that when any school district voting the maximum levy for school purposes, as provided in Section 11, Article 10, of the Constitution of Missouri, shall not have sufficient funds to maintain their public schools within the general average cost per pupil for all the schools within the county, the county court shall pay out of the incidental funds in the county treasury the tuition of pupils attending a colored high school from said school district; such payment to be made out of the teacher's and contingent funds of the debtor school district, and such tuition fees so collected by the secretary shall be turned over by him, with an itemized statement, to the treasurer of said school district." [Laws 1921, p. 614.]

From the averments contained in the alternative writ it appears that the relator is a colored person of school age residing in Normandy School District in St. Louis County that she has completed the course approved by the department of public instruction for the school districts in said county; that no consolidated high school for colored persons has been furnished for Normandy School District, or St. Louis...