Cross v. Board of Trustees

| Ky. Ct. App. | Nov 16, 1905

Opinion by

Judge Barker

Reversing.

This is an action by Waite Cross, an infant, sning by Ms next friend, James Cross, against the board of-trustees of the Walton graded common school district, for a mandatory injunction requiring them to reinstate Mm in the school of that district, from which he alleges, he was unlawfully and arbitrarily expelled, and is now restrained" by the appellees from attending. The petition alleges the establishment of the Walton school district and the residence of Waite Cross therein; that he is within school age, and entitled to attend the school as a pupil; that prior to April 4, 1904, he had been allowed to attend, and that at all times he was obedient to the rules, deporting himself in a proper manner, but on that day the appellees arbitrarily, unfairly, maliciously, and without provocation expelled him from the school, and -refused to permit him to attend therein during the remainder of the term, ‘ ‘ and now refuse to permit him to attend said school, and will continue to do so unless they are enjoined from so doing; that he has asked the said .defendants for the privilege of attending said school,, as he is entitled to same, but he has been denied that privilege by said defendants.” By an amended petition, he alleged that the order of the trustees expelling him is not limited to any time, “but expels him therefrom without any conditions or limitations^ and. said order is now in full force and effect, and the trustees .refuse to set it aside or modify it in any way, but now persist in keeping same in force and are doing so without right or cause, although plaintiff has petitioned the full board of trustees to restore the said Waite Cross to said school, and to set aside said order of expulsion, all of which they refused to do. ’ ’ A general demurrer of the trustees to the petition as amended was sustained, and, appellant declining to amend, it was dismissed.

Sec. 4364 of the Ky. Stats., of 1903 defines common schools, and provides who may attend.

“Sec. 4367. All pupils who may be admitted to common schools shall comply with the regulations established in pursuance of law for the government of such schools. Willful disobedience or defiance of the authority of the teachers, habitual profanity or vulgarity, or other gross violation of propriety or law, shall constitute good cause for suspension or expulsion from school.

“Sec. 4473. Said trustees may adopt such by-laws and rules for the government of themselves and their appointees, and for the control, government and management of graded common schools in their respective districts, as they may deem necessary, not in conflict with law, and shall keep a journal of their proceedings, which shall be open at all times to the inspection of any citizen of the graded common school district in which he or she may reside.”

Counsel for appellees in his brief admits, generally, the right of one unlawfully kept from entering a common school by the trustees to a mandatory injunction requiring them to admit the pupil; but he insists that in the case at bar the allegations with reference to the trustees’ preventing the appellant from attending the school in the future are not sufficiently definite and certain to authorize the issuance of the writ. That we may not misstate his position in this regard, we quote as follows from his brief:

“There must be some substantial, definite, and certain allegation as to the threatened interference on the part of the trustees to authorize the harsh remedy sought in this case. We concede that a court of equity, in a proper case, may by mandatory injunction compel those in charge of graded common schools to admit any person with the proper qualifications; but we insist that, before the court will issue an order of mandatory injunction against the officers of such schools, all the material allegations that are necessary to authorize such action must be made, the strictest pleading should be required, and no loose, scattered language will suffice. Facts must be alleged and not inferred. Tlie wrong complained of in the petition was the arbitrary expulsion of appellant by the trustees on April 4, 1904, for the remainder of that term, and those allegations have no relation to the future, no connection with the. fall term, no relation to it j that they simply show, and it is admitted by the demurrer for the purpose of this case, “that he was arbitrarily expelled from said school for the remainder of that term, but there is no allegation in the petition that shows that the trustees ever threatened to prevent the appellant from attending the fall term of said school. So I insist that all of the acts prior to July 28, 1904, have no connection with, and are no part of the substance of the grounds for, the relief sought in the petition.”

‘This position is entirely too technical. The petition alleges that the trustees have arbitrarily expelled appellant from school, and refused, upon request, to reinstate him or permit him to return. The allegation of expulsion is not limited to the school term at which it took place. By the petition as amended the expulsion is alleged to be permanent. The allegation as to the future is as follows: And they “now refuse to permit him to attend said school, and will continue to do so unless they are enjoined from so doing; that he has asked the said defendants for the privilege of attending said school as he is entitled to same, but he has been denied .that privilege by said defendants.” Taking these allegations in their ordinary signification, they clearly mean that the expulsion of appellant was permanent; that the trustees have refused, and will, unless restrained, continue in the future .to refuse, him the privilege of attending school. Appellees had no right to arbitrarily expel appellant, and have no right to arbitrarily refuse him the privilege of attending in the future the public school of the district in which he lives.

It is also insisted that the petition is defective, in that it fails to state whether the appellee is a white or colored pupil, and therefore it is urged that it does not appear whether or not he is entitled to enter; it being unlawful for a white pupil to attend a common School for colored pupils, and. for a colored pupil to (attend a common school for white pupils. It may be conceded that there would be great force in this position if appellant was seeking to enter the school as an original proposition; but, having been allowed to attend prior to April 4, 1904, as a pupil, it must be presumed that he is of that color which properly admitted him asa pupil.

Of course, we do not intend to be understood as holding that the trustees of common schools in this State may not, under secs. 4367 and 4473 of the Kentucky Stats., of 1903, prescribe rules and regulations for the discipline of the pupils, and expel them for violation thereof, or, when this is done, that we have the power to review their honest judgment as to whether the pupil was guilty or innocent of the charges; but we think, where it is admitted, as is done by the demurrer here, that the expulsion was without charge of misconduct, and made arbitrarily and maliciously by the trustees, and that they refuse to reinstate appellant upon request, and will continue the expulsion in the future unless restrained by order of the court, this constitutes a ground for legal redress. Nothing can be more important to the upholding and maintenance of the common school system in its integrity than the enforcement of wholesome and reasonable discipline among the students. This high duty is cast upon the trustees, and the courts will never interfere with them while acting within their legal province; but the exercise of arbitrary power is forbidden by the Constitution to any man or set of men within this Commonwealth.

The judgment is reversed, with directions to overrule the demurrer and for further proceedings consistent herewith.