State ex rel. Biggs v. Penter

ELLISON, J. Relator claiming to be a citizen of the town of Ashland, Boone county, Missouri, seeks to compel defendants, who are the directors of the Ash-land School District, to admit his five children to the school of such district without tuition. The finding of the trial court was for relator and a peremptory mandamus was issued. The children had entered the school, but the defendants being of the opinion that they were not residents of the district, notified relator to appear at a meeting of the directors and show cause why he should not pay. tuition for them on the ground of non-residence. Relator did not appear at such meeting. He was then notified that his children were excluded from the school. Another meeting of the board was called at relator’s request at which he was present. They were unable to agree on relator’s residence and after some dispute as to whether relator should sign an affidavit prepared for him on the question’ of residence, the determination to exclude the children was adhered [419] ■to, whereupon relator instituted this proceeding as aforesaid. In School District v. Matherly, 84 Mo. App. 140, affirmed on second appeal, reported in 90 Mo. App. 403, we determined that a person coming from the country temporarily into a town school .district was not entitled to free tuition for his children in the school of such district and. we determined the character of residence required for .such free use of the school. In this case it appears that relator resided on his farm outside the limits of the Ashland School District and that a few weeks prior to the fall term of the Ashland school he moved his family into Ashland. Whether such removal was merely temporary for the purpose -of getting the advantage of the town school; or whether of a permanent character, was the question tried by the trial court and we find that there was evidence to sustain that court in its conclusion on: the question of residence under the cases cited. But it is contended that mandamus was not relator’s remedy. In this connection the familiar rule that mandamus will not lie in review of official acts which require the exercise of judgment and discretion, is called to our attention. That rule has no application to the case in hand. The school board has no discretion which can be exercised against the right of a citizen of that board’s district to have his children attend the public school free of charge. The fact determines the right and it has always been held in such cases that mandamus is a proper remedy. In the matter of Rebenack, 62 Mo. App. 8; State ex rel. v. Hamilton et al., 42 Mo. App. 24; State ex rel. v. Osborne et al., 32 Mo. App. 536. The ordinary process of law does not afford that complete remedy which would deprive one of the right to resort to an extraordinary writ. The suggestion submitted here that the injury is a private one and that defendant had at first failed to meet with the directory to enter upon a question of his right to the benefit of the school and that he'had re [420] fused to make a certain affidavit prescribed for Mm by defendants can not affect Ms abstract right, nor estop Mm from asserting it in the proper tribunal. We do not regard the criticism of the form of the judgment as of substantial merit. The judgment will therefore be affirmed. All concur.