People v. Buckland , 84 Colo. 240 ( 1928 )

THIS writ of mandamus was sued out of the district court of Huerfano county by S. Julian Lamme as relator, against Charles S. Buckland, et al., as members constituting the Huerfano high school committee, and J. W. Yost, principal of the school. Its object was to compel the respondents to reinstate in the high school the daughter of Lamme, who had been a pupil therein but who was expelled from the school for her failure and refusal to comply with a rule or regulation of the committee prescribing uniforms to be worn by girl pupils. To the amended writ, respondents filed a demurrer which was overruled. Thereupon respondents filed an answer and return to the writ, to which answer and return relator demurred. The court overruled relator's demurrer, and he elected to stand upon it, whereupon the court quashed the alternative writ of mandamus and dismissed the action. The relator is here with his writ of error to review that judgment.

The record does not disclose the ground upon which the district court based its ruling; whether it was because the rule or regulation of the high school committee, and its enforcement, constitute a reasonable exercise of the power vested in the committee by statute, or that the relator had an adequate and sufficient ordinary legal remedy. If the writ was quashed and the action dismissed upon the first ground, the judgment, though right, was upon a ground that we do not pass upon; if it was based upon the latter ground, the judgment is right and for the right reason as we proceed to show.

Our General Assembly in sections 8460 to 8467, C. L. 1921, has provided a complete system of procedure for litigating controversies of this nature. Section 8460 provides that any person aggrieved by any decision or order of the district board of directors of a school district, in matter of law or fact, may, within a designated time after such decision has been made, appeal therefrom to the county superintendent of the proper county. Section 8466 provides that the board itself, or such person, feeling aggrieved by the decision or order of the county superintendent on the appeal, may, within a fixed time, appeal therefrom to the state board of education, which consists of the state superintendent of public instruction, the attorney general and the secretary of state. Colo. Const. art. 9, § 1. This legislation by our General Assembly clearly indicates a purpose to vest in the school authorities the adjustment and settlement of such controversies. While mandamus under our code is a judicial action or proceeding of a civil character, it is not an ordinary action or proceeding available as matter of right. It is maintainable only when there is no other adequate legal remedy, and the courts are invested with a sound discretion as to its issuance. In consonance with the common law rule, section 342 of our Code of Civil Procedure declares that the writ shall not be issued in any case where there is a plain, speedy and adequate remedy in the ordinary course of law. 38 C. J. p. 541, § 1.

Where there is by statute an adequate remedy by appeal, or otherwise, from an order of a public officer or a public board, mandamus should be refused. Since in this state a statute exists that permits appeals by the aggrieved person from an order of a school board, or a high school committee, to the county superintendent of schools, and from his decision to the state board of education, in all school matters of law or fact, mandamus by the courts does not, in the first instance, lie. When his daughter was excluded from the high school, where she was privileged to be a pupil, for her failure to conform to this rule or regulation of the school committee, it was the duty of the relator, if dissatisfied with the expulsion, first to invoke the statutory remedy of an appeal to the county superintendent of schools, and, if there defeated, to appeal to the state board of education, before resorting to the courts for relief. The fact that by the statute the county superintendent is ex officio a member of the high school committee does not change the rule. The county superintendent, as such, acts in one capacity, and as a member of the school board in another; and the authorities are that, in the absence of a statute to the contrary, this does not disqualify him, as county superintendent, from entertaining and deciding an appeal from the school committee, or school board, of which he is ex officio a member. Grosjean v. Boardof Education, 40 Cal. App. 434, 181 P. 113; Butler v.Scholefield, 54 Cal. App. 217, 201 P. 625.

In People v. Stanley, 81 Colo. 276, involving the power of a school board to require the reading of the Bible in public schools, speaking by Mr. Justice Denison, at the very beginning of the opinion, we said: "Some of the court think there are certain technical objections to granting that writ (mandamus) in such a case as this, but since the parties have not urged them, we do not notice these objections except to say that this case is not to be regarded as an authority against them." This expression is, at least, an intimation that statutory remedies for reviewing decisions of public school authorities in school matters should be invoked before resorting to the courts. In the present case counsel for the respondents, both below and here, has objected to this proceeding by mandamus, in the first instance, on the ground that the statute has provided a plain, speedy and adequate ordinary legal remedy. The General Assembly, having so clearly indicated its policy that disputes of this character should be first determined by school officials themselves, and that the time of the courts should not unnecessarily be consumed, we hold that at least until the aggrieved party has exhausted his statutory remedy he is not entitled to have his grievance heard by the courts.

We are not unaware of decisions of other courts that the statutory remedy of appeal from decisions of the school boards is not the exclusive remedy. In Clark, et al.v. Board of Trustees, 117 Miss. 234, 78 So. 145, it was held under a statute of that state providing for such appeals, which the court said covers administrative matters only, that the remedy is not exclusive and an aggrieved parent, whose child has been unlawfully deprived of the privileges of a public school, might resort to the courts, in the first instance, for relief. And there are like decisions of other courts, while still other courts have required the aggrieved person first to pursue the ordinary legal remedy provided by the legislature. In no case that we have been able to find, or to which our attention has been called, were any such decisions made under statutes so full and complete as our statute on the subject. In School District v. High School District,25 Colo. App. 510, the point was made that any person aggrieved by any decision or order of a board of school directors, in matter of law or of fact, may take an appeal therefrom to the county superintendent, and from his decision to the state board of education, and, therefore, that the action there, which was brought in the court in the first instance, could not be maintained because this statutory remedy is exclusive. To this contention Judge King in his opinion said that the sections of the statute authorizing such appeals do not confer upon school boards exclusive jurisdiction to decide all controversies between the school boards and other persons, natural or corporate, who feel aggrieved thereby. The learned judge then said that the action there pending against the school board related "to a statutory liability, of a quasi contractual nature, in which the only effectual remedy to the plaintiff must be, and is, in some tribunal having power to render and enforce a money judgment." And since section 8467, C. L. 1921, expressly provides that these sections of the statute under consideration shall not be so construed as to authorize either the county superintendent or the state board to render a judgment for money, the action there could be maintained only in a court of justice. But the court in this connection said, and this observation is what is important and pertinent here: "Although they (sections 8460-8466) may, and, we think, do, impliedly confer such jurisdiction [i. e., exclusive jurisdiction] over certain classes of cases pertaining to educational matters." This language gives color to the contention of the school board here that the subject matter of this controversy is within the exclusive jurisdiction of the school authorities. It is not necessary, however, for our present purpose, to pass upon this important question. It is enough to say that this mandamus action was prematurely brought. Without indicating an opinion as to the reasonableness of the regulation of the school committee, or the reasonableness of its enforcement in this case, the judgment of the district court must be affirmed, even though the alternative writ may have been quashed for a wrong reason. The judgment of dismissal, however, for the reasons already given, was right, and it is therefore affirmed, without prejudice to the relator, who is hereby given the right to renew his request for the reinstatement of his daughter in the high school. By this course he will be able, in case the request is refused, to take the appeals, if he sees fit, in accordance with the provisions of the statute. The judgment is affirmed and the cause is remanded, further proceedings, if any, to be consistent with the views expressed in the opinion.

All the Justices concurring, except MR. JUSTICE WALKER dissenting. MR. CHIEF JUSTICE DENISON specially concurring.