*1 121 in- presumption necessity for the nor room cause, there neither ’’ rule affords. ference which the following Belding from quotes the opinion cites and principal SW, (2d) 506, 510: 491, 497, 215 Pub.Serv.Co., 358 Mo. v. St.L. “ * * * ipsa loquitur,- res having a ease of plaintiff, pleaded ^611 £he knowledge his reveal point out, so far his own evidence goes injury, responsible his was of, specific negligence act which for room, application doctrine. necessity neither nor there is to, may tend plaintiff’s evidence though the hand, the other But on even accident, lose nevertheless not specific he will show the cause of rely right upon doctrine, deprived nor be the benefit in, ‘the true case, if, after evidence is his his it in the submission of ” [Emphasis clearly cause is still doubt or is not shown.’ ours]. left casualty was shown in this ease the true cause But get her on told plaintiff-appellant said the bus driver herself. She We, speed. its moving, and then accelerated the bus while it was still behalf, her jury in say not a case for the do failed to make ipsa loquitur case, specific negligence a res on it was case not theory brought. Conduitt, held in the her And as suit was on Stolovey and Powell above cannot recover the latter' cases cited she theory brought her See also: Palmer v. when suit was the former. 909(4, 1061(1), 906, 5); 169
Brooks, 1055, (2d) 350 Mo. SW. Charl Lovelace, 369-372, 13, 364, SW.(2d) 16-18; 351 173 Hoeller ton v. Mo. v, 7, (2d) 11-12(11); 199 (Mo.App.) St.L. Pub. Serv. Co. SW. Fuller (Mo.App.) 675, SW.(2d) (1, 2); v. St.L. Pub. Serv. 245 Co. 677 Co., Mo.1071, (1), Lukitsch v. L. 362 1078 246 (2d) St. Pub. Serv. SW.
749, (3, 4). my opinion sustaining of the trial order court the defendant-
respondent’s motion for new trial should affirmed.
Henry Reorganized Berghorn al., Respondents, v. et School 8, Appellants, County, Missouri, al., District Franklin et No. (2d)
No. 43258 260 W. 573. S. One,
Division June July Rehearing 13, 1953, or to
Motion Transfer Banc Overruled opinion filed. *2 Huger, Bernard J. Walter H. Leo A. Potttte Pollmcmn, and Eramk Jemvy appellants. W.
Boyle Clark, Massey William Watson for G. H/ Becker and E. respondents; Clark & Becker of counsel. *6 taxpayers resident by plaintiffs as
PER CURIAM. Action school districts age in defendant children of school parents of resident citizens and all other of themselves on behalf injunctive declaratory judgment and districts for taxpayers of said thereof, and directors districts, the officers against the said relief *7 alleged County, Missouri. The Franklin of and the Treasurer illegally sought that defendants upon is is ground which relief of of the state public monies receiving spending tax collecting, which support of schools said school districts and of the Missouri which parochial schools in schools, but are in fact are not free teachers thereof religion taught and in which the is a sectarian and force by religious denomination, creed governed controlled policy Catholic Church and in of the Roman Relief is in effect. of and secular education combination of enjoin expenditure sought against practices and to is said maintenance by for the public tax monies defendants being managed and administered so as that are fact of schools of the Roman Church violation promote interests of Amendments of the the First and Fourteenth Constitution IX, I, 5, 6, 10, 7 and and Article and Article Sections United States The Missouri, of 1945. 8 of the of the State Section Constitution declaratory findings of and entered a trial court made detailed fact sought. De- judgment granted injunctive relief and further appealed. fendants have jurisdiction sought is invoked on this
The of this court to be squarely appeal ground the court’s is based upon “findings that defendants have violated both the State Constitu States”, and that certain tion and the Constitution the United constitutions, require no issues involved construction such specific provision of has the Constitution the United States been appellants’ points brief is cited under and authorities and there any specific provision no contention that thereof has been miscon by court, such accompanied strued the trial nor is contention assignment an Accordingly, of reasons the construction is erroneous. question presented appeal. no federal constitutional is on this Nick, 305, (2d) 112, 114; City Robinson v. 345 Mo. 134 S.W. Co., 1221, 372, Louis v. Butler 358 Mo. 219 S.W. St. 380. We (2d) jurisdiction ground appeal take on the that the involves a construc I, 5, 7, IX, tion of Article Sections 6 and and Article 8, Section Missouri, of the State of Constitution petition upon tried, The which the cause was as amended at the fifty trial, pages covers some the record. The cause was upon agreed an facts, tried what is referred statement but what agreed an fact statement of facts and evidence, covering pages, eighty seven from which some evidence the court made a ultimate facts in issue determination and entered its declara-
129 - entered, judgment as- injunction decree. The tory judgment and declaratory judgment and fact, findings of including specific transcript. thirty seven-pages of injunction decree covers some only-a very of the facts. Space permits brief review 8,No. referred District hereinafter Reorganized School Defendant primary three- schools. operates and maintains to as District and Krakow. The Gildehaus, Ziegenmeyer are known as age. grade are of school Until at these schools children in attendance by the Roman operated 1931 all of these schools were- three instruc- the Church Church with teachers selected with the rules and in accordance given tion in the classrooms "was Thereafter, regarding parochial schools. practices said church respectively districts, used school buildings these were Krakow Ziegenmeyer District wit, Gildehaus District -and another were later consolidated three districts District 44. These buildings Ziegenmeyer at and sites District 8. The buildings in parochial which the several Krakow were sold and had been n were in-use 8. Title operated continued District *8 Archbishop name of the of buildings to is still- in- the the the school is for the Roman Louis and it held Catholic Church. St. Archdiocese building, is no paid No for Krakow school there lease and rent is living quarters there, have their within the nuns who teach therein n community. The .150.yards of the Roman Catholic Church is the same land building Gildehaus on tract of with the school at -priest’s house, house and the Gildehaus Roman the nuns’ Catholic spire paid for its use. The of the church No rent is and the Church. building by a cupola are surmounted Another of the school each cross. by District 8 an building adjoining and used is on tract. owned is.paid fifty year for the per dollar's use of the
One hundred building. Ziegenmeyer school 23, Hill District No. hereinafter Rock School referred to Defendant operate Hill, school, maintain'and a por- does not
as Rock uses -paying, pupils the tuition of its school funds those of said tions of of of the schools District 8 or who attend either attend other district By agreement parents, only of defendants districts. residing Hill families in Rock
children of Roman Catholic attend the parents of 8, while the children District non-Catholic schools of ‘ adjoining Hill are districts the west. The Rock sent to tuition- is large population Roman There is a paid Rock Hill. Only three schools mentioned
Rock Hill and District are main- holidays recognized legal by In to tained. addition state board adjourn religious of District for education, holidays, the schools of and' Feasts of wit, Concep- of all to Feast Saints Immaculate tion. at and Krakow in the schools- Gildehaus
The teachers members religious Roman affiliated with-the. of orders Church. The of Notre Sisters belong Poor School
mm at Krakow to the teachers of Adoration belong to Sisters Dame, at while those Gildehaus are known of Blood These nuns the Most Precious of O’Fallon. not only by religious names, their their addressed the schools employ, legal refused The District 8 have never names. directors of district with, assigned a teach in that accept contract or nun mentioned orders. Since Superior the Mother the above one only one living alone, prohibit these orders nun from and there a Ziegenmeyer school, employed nun is not to teach teacher at the a laywoman. in the there, a teach but Catholic nuns who they qualifications possess necessary of District 8 educational There are citizens of and of the United States. the state Missouri building religious symbols insignia are no kind in the school cupola at Gildehaus or the cross on the at Gildehaus. Krakow Religious books, dis- pamphlets, pictures and literature not giving religious training tributed. The class rooms of these schools was discontinued after 1931.
Each employed of the nuns at Gildehaus and employed Krakow are paid at than ordinarily salaries lower teachers of similar experience. education and event nun ask a does not for a renewal with Superior contract District the Mother religious belongs, order to which she selects another nun to take her place County Superintendent and the new nun calls on the Schools, has her qualifications educational approved teach and then attends meeting the school board into enters contract to teach. The teaching nuns at Krakow and Gildehaus at all times wear their dis- religious tinctive garb, including symbols the emblems and of their respective order. As members orders to belong, they these nuns have taken vows of poverty, obedience chastity. gifts, “All given even the are to superiors smallest * * * general Every day use. teaching *9 duty sisters are in bound bring to place appointed by to the Superior the any money may they *(cid:127)* * have belongs received. The time of (Poor sister to the order.” School Sisters of Dame.) Substantially Notre the same is for the true sisters of the Adoration of the Most Precious of Blood A O’Fallon. agrees sister of this order to live her “whole life poverty, chastity, and according obedience to the constitution” of .the order. “By the simple poverty, vow of the right Sister renounces her licitly to dis- pose anything of temporal having money whatsoever value, without permission the Superior. of the lawful Therefore, she is not allowed, permission, without due to appropriate anything* to by herself accepting, buying, borrowing, dispose or or to of anything giving, selling, loaning, changing, locking, concealing, destroying or per- to * * * anything destroyed mit be through to her fault "Whatever is acquired by Sisters, the Superiors, through even-the labor or in respect Institute, the property of must be added the of the or Congre- house in tbe placed money and securities are likewise, all gation; 499) “All mem- (Canon laws treasury.” Under the church common their Pontiff Roman subject to the religious are bers of orders of their obedience, also virtue they owe supreme superior to whom ’’ of vows obedience. receive nuns “The the record shows applied As to this case income living expenses, their actual pay and thereout their salaries fund, and there- retirement payment to the state teachers’ taxes, and of religious -order the officer deliver the balance the fiscal after of deductions an itemized. statement they members, with which general part of the balance becomes aforesaid, which pay-outs as carrying order for use said religious order particular fund the purposes objectives.” and out its in attend- pupils 1950-1951, year During school Catholic in the at 8 o’clock mass and attended ance at Krakow Gildehaus in- religious then received adjoining morning in the churches to their they returned o’clock, after :50 struction from 8:30 to 8 participated taught in buildings. The nuns who school of the beginning religious Since giving instruction. who attend the 1951-1952, many children school term only at Gildehaus, attend mass schools of District 8 at Krakow is Church teachings of the Catholic Instruction in the 8:00 o’clock. at attendance children in
given Saturday only for the Catholic place. at said given in the Church Gildehaus school and it is attend at Krakow Gildehaus nuns who teach in the The children time the- Catholic religious morning at the same services each they also attended year 1951-1952 during attend the school religious when religion at times participated teaching In the Saturdays Gildehaus Church. given on at the instruction was services, including mass at Gildehaus conducting religious acolytes at the customary boys and serve- Krakow, it altar have surplice. consisting cassock and customary mass in uniform boys acolytes and altar boys perform the duties of who serve and by Dis- operated pupils from the at these schools drawn 'Catholic and instructed in rituals they 8 and are trained trict days by parish days than the said services on other If in said schools of District priest and the nuns who teach performed during school hours for wed- are-to be services charge dings funerals, nuns in of the schools excuse Daily acolytes boys while the Catholic or altar who attend school.. a.m., non- attending religious services before
children are arrived at wait in the school children who have Catholie During building ground. the first half' of the school or on the school *10 1950-1951, at the Gildehaus school year of the school buses arrived p.m. Thereafter, and left at 4:00 the buses arrived at at 8:00 a.m. p.m. 4:00 Non-Catholic children who desire a.m. and left at to :00
.132 days school on children Catholic religious the services with the
attend authorities. by church the 'permitted do so hours are before school Gil- the brought are children Since November the in religious instruction Saturdays in buses dehaus school on days go with on school who teach them Catholic church and the nuns religious in the nuns share children church to the where religious -instructions. giving and in the -of services Hierarchy es- agreed It' is -that “the intent of a means tablishing provide maintaining parochial schools is to training to the furnishing religious' education a secular are located Ordinarily such children of Catholic faith'. religious orders dressed employ close to church and members of subject to the their are religious distinctive habits. These teachers Religion board. control of the church rather to that of school than ’’ during integral part taught an the curriculum. school hours as agreed recognized The educational evidence further shows that recognize grade age under- authorities that': “Children of school developed particularly susceptible and are influence of their surroundings teachers and with whom the actions of the children they surroundings are associated. That environmental in education significant.” of the-individual are agreed proceeds: statement “With to the case reference
question, .proximity churches, close schools to the fact that-they by churches, and, instance, owned in one the Gilde- haus ground school is located on church, priest’s which the ’ house,(cid:127) (cid:127) located; and the nuns home are the fact that at Krakow and garbed Gildehaus schools clothing the teachers are in the of their religious order and symbols wear the of their order and at Krakow the n nunslive building the school and are religious called their names--rather names; than their secular that open the church is religious morning shortly in the services opening before school; services are attended teachers; that -church the nun that children who arrive at the schools and do religious not attend services remain building ground school on the school. during such religious services; acolyte boys or alter are excused from school during religious school hours to attend services; either weddings, or funerals, adjoining in the church; given instruction is at the than, days church on other days participated the nun teachers who teach in the during school days; priests that the live, i-n proximity close to the -two schools herein; mentioned that one building a cross;' bears like, and the tends to condition child, acceptance in the of the Roman Catholic faith. Similar condi- existing' tions under such influence any other sectarian religious faith would result in the conditioning of the child to such ' ” sectarian faith. *11 * n * * schools operation in the The trial court found “that policy School’ the ‘Krakow and the known as the ‘Gildehaus Schools’ of separation respect to the with .of and laws of the State Missouri violated; that and ignored been and the State have the Church Catholic,Church inis to education respect Roman with policy of the at of the schools schools; that one wholly partially in said effect by. operated prior to 1931 Krakow ivere Gildehaus and the school at parochial schools private the Roman Church as sectarian Catholic laws Church Roman Catholic under and accord with the changes in the policies; some minor and that while there have been the free induction into operation method of of said since their sufficiently changes substantial public system, are hot school made school; each of said that to make either of schools a free said in fact is including at Gildehaus the district owned school Roman recognized orders of the by controlled in the main of members ato by thereof; Catholic each of said schools Church and officials great degree promote managed and administered in a manner ad- and of policies the interests and of the Roman Catholic Church ’ * * that The found herents the Roman Catholic faith court public schools said schools at Gildehaus and Krakow were not free meaning within the and laws of the State the Constitution Missouri; and from ineligible that said schools were ' school public authority. funds and court found “that'said nuns and each of them their oaths units, cease to exist as free and citizens and as individual economic during money their service contracts, pay execute receive out and in taxes in a perfunctory sense, nominal formal while reality, acting religious orders, agents instruments and Of their engage in executing policies Church; of the Roman Catholic very obligations nature of their control to théy themselves, the final and absolute control of the secular submit * * * or sectarian personal existence and actions the nuns is vested in the authorities; Church that because of the character of their obligations disqualified said nuns teaching any public from * * * the State of Missouri.; that in case of conflict between * * * the directions and the orders of the defendant school directors with obligations, orders and directions of superiors in their respective religious orders or the Hierarchy Roman Catholic the nuns and each of them virtue of their oaths (would) of obedience required ignore the orders of the secular school authorities and obey ' religious the orders of superior Hierarchy.” and Church The court further found arrangement with the Roman joint operation Church for the of -motor buses for trans- porting pupils to the Gildehaus to the Gildehaus church constituted an unlawful intermingling of the funds of the said school district and of the St. John’s Church, and the rise of aid of a joint operation
monies for two motor buses was arrangement that said purpose, creed and church for sectarian' personal for a creed property constituted donation unlawful. purposes church was therefore sectarian necessary appeal, not be view the raised on this it will issues declaratory point provisions at this review detailed enjoined two, entered on count the court count one. Under *12 continuing arrangement the and restrained from the for defendants joint for operation using any of from monies motor buses and operation arrangement the joint the an with of motor buses under Church, Roman from enjoined and restrained defendants using paying any public or for the monies maintenance school, of of presently either the Krakow as Gildehaus schools or maintained, conducted and from enjoined and restrained defendants employing any nun of teachers or nuns the order the Sisters any of the Adoration of the Most Precious of O’Fallon or Blood nun or nuns of the Order of the School Dame Poor Sisters Notre employing any and from as a teacher school within said person wearing garb 8 “a prescribed by religious District a uniform order Church”, Roman enjoined defendants from conducting any any upon property said and in district building belonging to the property Roman Catholic unless Church said any removed and separated premises from on which is located home, priest’s nuns’ buildings, church or home unless premises be validly specific agreement leased for a an term under removing property said from control of church terms of the lease. The Rock Hill enjoined District and its officerswere paying public restrained from belonging funds to said district for tuition pupils to District 8 for resident Rock Hill District attending either the Gildehaus Krakow schools in District 8. We need not provisions review further injunction the detailed of the decree.
In undertaking to review this appeal, cause on we con with fronted appellants’ the fact that the comply brief not does with Supreme points Court 1.08 in that, authorities, Rule under points relied “specify allegations on do not Appellants; of error.” “points under authorities”, ignored have the fact that this cause was tried and determined in the trial court an appeal and that was entered, specific judgment taken from a points listed, therein. part, the most law, abstract statements of apparently which have been taken from a brief, any attempt without trial whatsoever directly to relate them specific provision thirty-seven page judgment from which appeal points was taken. Such present nothing appeal. Further, for review on there is no reference specific the fact that a judgment has even been entered in the cause word “error” does appear not part this of the brief
135 any attempt assignments because there are neither error nor specify judgment points wherein or the or reasons is erroneous upon appellants rely. assignments It is well settled that error, point which do the error not undertake to out wherein present nothing 1118, Majors Malone, lies for review. 339 Mo. v. (2d)
100 300; Elliott, 1009, S. W. Hartkopf v. 339 Mo. 99 S.W. (2d) 25, 26; 840; Co., 374, 834, Scott v. Mo. Mo. 62 S.W. Pac. R. 333 Metropolitan Properties 787, 142 Rideout, v. 346 Mo. S.W. Co. (2d) 1055; (Mo. Sup.), Gelhot v. Stein 174 S.W. (2d_) printed argument appellants complain portions of various against them, presentation complaints entered but such
presents nothing Lines for review. Eisenbarth v. Powell Bros. Truck (Mo. Sup.), (2d) 263, Co., 268; supra. 161 S.W. v. Mo. Pac. R. Scott Appellants reply specific assign- in their brief have set out certain error, reply specify ments of errors place brief is not the review, assignments comply such with our rules and do not properly present nothing Thompson, for our consideration. Smith v. 502, (2d) 70, Clayton,
346 Mo. (12); City 142 S.W. 76 Nemours v. (2d) 937, Pitcairn,
351 Mo. 939; S.W. Whitaker v. *13 (2d) 163, Mo. Except public S.W. for the interest case, in appeal properly this reasons should be dismissed any stated and without appeal consideration of the on its merits.
Appellants’ reply presents following points brief which will ruled, although they be comply fail to of this court. with the rules (1) sue”; “The trial erred in recognizing respondents’ right court to (2) “The finding trial court erred in in that the teachers defendant- indispensable parties”; (3) schools are not “The court trial finding in public erred that defendant schools are not free enjoining operation, and in finding by their in that there was no trial court that in children defendant'schools have been influenced by any or coerced ruling assignments sectarian matter.” these we arguments appearing appellants’ will refer to original some in brief reply as well as in the brief.
Appellants’ principal first point appears “plain to that be standing tiffs have no bring taxpayers they to this suit as because * * * * * * special pecuniary cannot show injury damage or peculiar opposed tax-paying public to themselves large”; as to the at plaintiffs that obliged support system “would even if granted”; the relief desired plaintiffs’ them were that “tax burdens are not complained of”; affected acts that plaintiffs “cannot their rights theory base action on a civil because * * # plaintiffs the children of do not attend defendants’ schools subjected and are not to defendants’ Appellants point acts.” employed the fact that question the nuns to teach in the schools paid ordinary lay-teachers; are than only less that no rent or paid buildings small amount is for the use of the school point principal
Appellants’ i f r st p p a r a e to s b “p f ti n e that fs lai i n have no ng s t d a bring this u s they * * show taxpayers t because cannot i damagepec injury pecuniary uliar special * * * * tax-paying opposed large”; plaintiffs that to themselvesas at to the system even obliged “wouldbe if ed d i r relief e s plaintiffs’ granted”; that them burdensnot affected “tax were plaintiffs of”; base complained that “cannot the acts their rightstheory because a i on a civil ct plaintiffs do * * # the children defendants’ s c not attend l h o o s fact It is difficult to contention in view of the understand this parties: “20. stipulated agreed it has been between filing justiciable controversy That a at existed the time herein, plaintiffs the suit and now between and defendants exists plaintiffs, towit.” as denied The averments claims of this mention, by defendants, plaintiffs’ are then reviewed without alleged right lack of pecuniary interest or. to maintain action. Further, argument appellants’ original brief, appellants refer particular to a matter which was in issue the case and then state controversy it justiciable “is the matter'about which'a properly exists and which is before the court decision.” -appellants’ There is no plaintiffs may merit contention that not maintain the We action. are not here with concerned the amount *14 any expenditures of lawful public purposes, for school but with alleged the expenditures unlawful and public unconstitutional of operation funds for the alleged parochial maintenance and of , contrary provisions 8, to the of Section Article IX of the Constitution Missouri 1945 and provisions. other constitutional determining taxpayer’s, In pecuniary injury resulting from the expenditure public unlawful funds, may weigh we not lawful expenditures against expenditures, unlawful legal injury because no results from expenditures the lawful funds.
It is plaintiffs admitted that and each of them are residents and taxpayers of the state of respective Missouri: and of their districts. taxpayers, As such question there can be no as to their right legal.capacity bring and maintain for them- this action enjoin similarly situated- of all others on behalf selves and illegal proof case In such public- funds. expenditure unlawful n funds is sufficient of shch expenditure and unconstitutional equitable taxpayers of the injury, because pecuniary private to show deficiency liability replenish -to and his ownership such funds Highway v. State Castilo misappropriation. resulting from Langford, 673; Harris v. 262, Comm., 244, 279 S.W. 312 Mo. Actions, 3, Taxpayers’ p. Am. Jur. 19, 21; 52 527, 211 S.W. Mo. by law apart set expressly by taxation and raised If funds See. 3. free of' and maintenance for the establishment wit, parochial schools, to different upon other and unlawfully expended mandate, as contrary constitutional schools, to the sectarian is that nécessary conclusion by plaintiffs, specifically pleaded be will tax-paying citizens resident taxation on the burden of be established required law to public schools The free increased. n out and maintained established maintained will have to be unlawfully diverted. funds replace additional funds raised this, “where as Further, in such case it has been held that dis about to be- public funds are involved and public interests are action taxpayer may maintain the illegal purpose,” a sipated for an damage of the required show at the trial the extent being without League of may injunction if be refused. Civic he sustain 891, 893; Hawkins v. Louis, (Mo. Sup.) 223 S. W. St. Louis St. v. 420, see Clark v. 421. And Joseph, (Mo. Sup.) 281 S.W.
St. 145, 147. (2d) Drug Co., 348 Mo. 152 S.W. Crown original it is contended brief printed argiimént In the * # * obligations the teachers determines “the decree controversy parties law, they be made to the should before Ap respected.” rights may be determined order that their ground indispensable party is pellants join failure to an insist that the not judgment should dismissal; reason the and that this authorities, appellants permitted points be to stand. Under court should say joined, been this that since nun have not teachers controversy No unsolved. not-decide a case that will leave matter is even to the specific trial court with reference error of the say- trial court appellants “the reply In brief mentioned. -parties to indispensable finding are not erred in that the teachers limiting its decree to such in not this action and the trial court erred as of the teachers might adjudicated matters in the absence as ’’ parties. no trial- court made in this cause the entered 'parties! -The matter
finding indispensable that the teachers were not judg- parties is not mentioned indispensable of the teachers ment, trial the defendants motion for a new- defendants’ on the trial court complained findings certain orders *15 There parties the record. ground nun-teachers were' not to that the complaint was no limited motion court have that the trial should its to absence of might adjudicated decree such matters as parties. presented teachers as to and ruled That matter was not upon by the trial here. 512.160 court and it is not for decision See. answers) (before filing RSMo 1949. In the court below the defendants assigned plaintiffs’ grounds moved to petition dismiss and one of the was parties necessary complete “because to determination alleged necessary were joined.” parties cause have not been The not named or heard and described. The motion dismiss was dismiss, any and of the overruled neither the motion to nor action trial thereto, court with reference was mentioned in defendants’ ruling situation, motion for a trial. In new such the trial court’s preserved Sup. has been for motion dismiss not review. Ct. subsequently Rule 3.23. the answers defendants no filed was any alleged indispensable parties reference made to the matter and was not further considered in the Defendants’ course the trial. motion to dismiss at the of all evidence close ruling indispensable parties, mentions teachers as the court’s on the motion is not a mentioned in the new trial. The motion matter is not Keathley, before us for 230 Mo. review. Barnard v. 209, 222, 130 306. And S.W. see Sees. 507.050 and 509.340 RSMo 1949; Sup. however, Ct. Rule 3.06. opinion, We are of appellants’ view of the issues raised decided there is no merit in Mickelberry’s (Mo. contention. Food Products Co. v. Haeussermann Sup.), (2d) S.W. I,
The trial 5-7, court construed Article Sections and Article IX, Section 8 of the Constitution Missouri 1945' to mean “that the State of Missouri has a policy fixed and definite maintain public free separate apart religious, from all church or sectarian activities and influences to end that absolute freedom of religion choice of worship and freedom shall be unaffected any religious influences, activity, proselyting example and indoctri through nation system intrusion into the free school * * * State of Missouri. unqualified policy That it is the State of Missouri that properties, directly no funds or either or indirectly, be used or sustain affected religious teachings by any influences or or sectarian beliefs or conducted in such manner predispose as to influence or acceptance child towards any particular religion or re ” * * ligious beliefs; ‘‘ policy Court held: That the of the Roman Catholic Church to intermingle education teachings secure order to strengthen the faith of its adherents and to secure indoctrination of children in religious principles its is in direct conflict with the policy of the State of Missouri in the fields education public schools; the free policies that the educational of the State *16 laws, educa- and and the Missouri, expressed as in its constitution be effectuated policies tional cannot of the Roman Church utterly are any single policies in time; school at that said the same * * mutually inconsistent exclusive. .and (cid:127) and stated, at Gildehaus As found that the schools Court specific features public schools; Krakow were not that certain free free destroyed the of the operation maintenance and of these schools ineligible for public character of and rendered them said schools court en- support by authority. The public public from funds or any public joined using paying and from restrained defendants schools, monies for of these support the maintenance of either presently as and maintained. conducted court
Appellants, reply brief, in “the trial their contend that finding (Gildehaus erred in in that the schools defendant district 8) in not entitled Krakow District are not free schools and money.” “erred tax It is further contended that the trial court enjoining operation in in absence of defendant schools finding by the trial court that the children in defendants’ schools actually in The last influenced or coerced the classroom.” by matter presented upon mentioned was not or ruled the trial pleaded court. It was not in as a defense or the trial raised complain the cause and the of the motion for new trial did not judgment ground. may on such on The matter not be considered appeal. 512.160(1), supra. Sec. assignment -finding the trial court erred in
schools, operated by certain the defendants at Gildehaus Krakow, money”, “were not free schools and not entitled to tax presents question sufficiency effect of the of the evidence to respect in the mentioned. See 510.310 Sec. ruling assignment RSMo 1949. In plaintiffs this this where ease, (respondents) sought by way declaratory judgment have relief of a by injunction, must review the on the issue men- we evidence tioned, weight determine its and value and reach our own conclusions as to facts and law. finding We need not defer to the of facts by the trial appeared personally court beeausé no witnesses before him and the upon agreed cause ivas tried an statement of facts and evidence from which ultimate conclusions of fact are to made. determining presented the issue we are not limited a con- particular separate sideration apart fact from all other facts and circumstances shown the -whole record. We must consider the total all effect of facts circumstances evidence in determining question whether the in fact free schools. In this connection we need refer to agreed facts concerning question the location of on the schools property, church their ownership Church, presence the Catholic in the classrooms of religious nun-teachers while dressed in distinctive
n conducting of emblems, the
garb wearing religions distinctive living quarters in the one school nuns services in their building reside, the nun-teachers in which of them the fact that some religious services daily conduct and others for the students adjoin- property at churches on or on located the same property ing grounds, the school instruction of Catholic Saturday mornings adjoining children at the churches schools, sending who nuns who teach in the of children do not object .question wish to attend the and who to certain *17 public in practices Washington in schools defendants’ schools to by Union, paying and the of tuition the defendant dis- their and same tricts the use of the same school buses with the drivers transportation management under the same for of children days religious training Saturdays (the being on school and for buses paid by parish and- owned the insurance’ 'the members of the Church Gildehaus, 8, repairs paid at with maintenance and District apportioned while other costs between are the school authorities use.) facts, and church agreed the in accordance with Other must be included that canon considered -the’fact under the laws of the.(Roman..Catholic children to be educated Church “Catholic only in nothing. contrary schools where not to Catholic faith and taught, is morals ing occupy but rather in where and schools moral train- place”;
first that “Catholic children not attend shall non-Catholie, say, schools are mixed, indifferent that that is to open-to permission schools alike”, Catholic and non-Catholie without of that authorities; church of Roman children families Catholic are sent from 8, Rock-Iiill to attend in school District such children being by agreement sent parents defendants, of their and while all in children .the Rock non-Catholic Hill district are “sent defend- public ants to in adjoining schools districts on of the west Rock Hill” and their transportation tuition and paid; the that defendant school directors -have not been of change advised in the attitude of the Catholic charged authorities supervision with the of Catholic parochial schools towards the in question, schools since the school began appropriation districts money of tax sup- (cid:127) port of these 1931; schools that nuns from the same Catholic have to teach in orders continued schools at Krakow and Gilde- haus,.-without any intermingling lay .teachers; of defendant school board approved, has exception, without such nun-teachers as have been sent Superior the Mothers respective teaching respective orders teach in schools; practice and adjourning religious' holidays school for legal addition to the holidays recognized by State Board Education has been followed practice excusing also students from pur- classes pose partaking special religious weddings ceremonies such as n ’ ’ nn : n - - ... funerals. . n record, think the we by- facts shown this and other From these oper schools, as maintained inescapable that these is conclusion at Gildehaus officers and its District 8 by defendant ated recog by members in the main “controlled Krakow, were in fact thereof”; officials Eoman Catholic orders of the Church nized “managed administered great degree schools to a were that said the Eoman policies of promote the interests a manner faith”; Eoman and of adherents of Church and were free not in fact said were and that money funds. or by public school supported not entitled to be (2d) 609. Hoegen, 163 S.W. Harfst v. 349 Mo. All concur. affirmed. judgment. to Transfer to Court Eehearing, in the Alternative Motion for
On Banc. en holding that Appellants complain of the court’s PEE CURIAM. indispensable contention that teachers there is no merit their - cause of action. complete plaintiffs’ parties to a determination specifically did not Appellants motion to dismiss admit that their alleged indispensable parties. Appellants point to as the the teachers point specific was no mention also admit that “there by implication was judgment,”, they claim that the contention *18 reason judgment; and “there no against ruled them in the that ” Appellants this case. further to invoke'the harsh rule of waiver-in is,“not stating in the here object court’s action thkt issue to the against the point the merits ruling and then “the on decision” ruling any for its appellants giving’ reasons contention of without seek to case,” appellants a case except for the citation of perhaps opinion, the distinguish. the was ruled in’the Since issue n have been-further discussed. matter should plaintiffs; present was instituted action The management practices in certain unlawful taxpayers, -prevent as to alleged enjoin to unlawful particular control schools and defendants. Plaintiffs’ expenditure funds the named question being managed, schools were fact position was that the particular in- of a controlled the interest administered and that, contrary provisions, constitutional to certain denomination hnlawfuEy expending public thereof, were a result the defendants as rehearing appellants a In their motion for thereof. funds this; inquiry simply pole star-of the here is Are “the concede that ” can no that such ‘free schools?’ There doubt here plaintiffs sought against In the action the no relief chief issue. is the necessary parties a The teachers were not to determina teachers. parties-plaintiffs to between the defendants-as tion of the issues schools, question were or whether free whether the being managed, 'and were controlled administered so as such schools denomination, or as promote to particular interests of lawful expenditure was whether the funds' defendants the tax and defend- existing plaintiffs or controversy unlawful. between The without the subject complete' ants was to- a determination full parties. The necessary presence any or interested intervention other re- any contractual matter of the existence of lawful or unlawful lationships in the and the teachers districts between the defendant on respective- trial material to the issues schools was not decisive or validity invalidity parties action, between the nor or to this could any plaintiffs’ action. such to the contracts' constitute defense 12, It tried and .January The action 1951. was was instituted question 25, was entered on submitted March 1952. The decree in 21, April injunctive restraining provisions and the were, decree became contracts 15,1952. effective on June teachers’ of course, April subject to on notice on or before 15th cancellation 163.090, 1952, 1951 and RSMo provided as Section not, whether the existence or not of such contract could cancelled no plaintiffs’ constitute defense to action. n brought parties If ha'd defendants wanted the teachers in as to the they presented- action should have matter to the trial court provided by 507.050, manner statute. See Sections 509.340 and Su- preme parties Court Rule 3.06. If the wanted teachers to intervene as they the action application should have their made the trial court.
Appellants have pointed not out wherein the said teachers Were indispensable parties disposition plaintiffs to the between issue They say and defendants. given no notice has been teachers; éffeet; in- their contracts are still and that this court has affirmed judgment trial presence court’s without the par- the teachers as Appellants say ties. also that the appeal determination of the “leaves discharged process teachers without due of law and also leaves controversy- the whole unsolved as to them.” However, there is no that, entered, any in view of the contention issue is un- parties as between the to the action. On this record we solved must and do hold that the nun teachers in defendant schools were necessary not parties plaintiffs’ and, no.sense, action they indispensable were *19 parties presence without whose coiild not complete there be a determi- controversy nation of the forth in pleadings set existing between plaintiffs validity and defendants. matter of of contracts be- tween districts' and the teachers has not presented been to or de- (cid:127) termined court. Neither the contracts nor the .this teachers were this before court. Appellants they insist further raised in the trial court a ‘‘ scope inquiry
contention that the' the trial court should facts, evidence have been limited and events place that took in should, classrooms”; trial court’s orders have been lim transpiring ited the 'classrooms. -’They tor matters say that they question portions motion certain in the to strike raised facts; they and that in their motion for a trial agreed statement new specifically complained the admission in evidence of the facts in the they sought of facts which stricken agreed statement have there- opinion, appellants have presented As stated no valid from. calling
assignment in this for a review of the trial action court court’s overruling motion to said appellants’ in either strike evidence or admitting objection. assign- the said facts evidence over The final presented essentially sufficiency ment this court concerns respect of the evidence in the record to with whether the schools in defendant districts were free schools. opinion.
That issue has been ruled Other contentions in the motion been have considered and deter- adversely appellants. mined for rehearing The motion or to transfer to court en banc is overruled. Skelly Gaddy, Respondent, Company, Appellant, No.
Julia v. Oil (2d) 43165 259 S. W. 844. Two, July
Division