Miller v. Clement
205 Pa. 484
Pa.
1903
Check Treatment

Opinion by

Mb. Justice Potteb,

This was a petition for a writ of mandamus. Such proceedings are now governed by the act of June 8, 1893, which outlines clearly the proper practice. Section 2 of this act provides that any person desiring to obtain a writ of mandamus shall present his petition therefor, verified by affidavit, to the judge or judges of the proper court, either in session or at chambers, setting forth the facts upon which he relies for the relief sought, the act or duty whose performance he seeks, his interest in the result, the name of the person or body at whose hands performance is sought, demand or refusal to per*488form the act or duty, and that the petitioner is without other adequate and specific remedy at law. If such petition presents the substance of a case for mandamus, the court shall direct that such writ issue in the alternative form. Provided, however, that if the right to require the performance of the act is clear and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be awarded in the first instance, and directed to issue forthwith.

The mode of procedure thus prescribed is essentially that which was pointed out and commended by this court in Keasy v. Bricker, 60 Pa. 9. The only question to be determined by the court upon the filing of the petition, is whether the substance of a case for mandamus is presented. If so, the writ should be directed to issue in the alternative form. It will be observed that no room is left for the issue of a preliminary rule to show cause. The granting of such a rule in this ease was irregular. It injected a useless feature into the proceedings, which only tended to complicate that which the act of assembly had made simple. To the rule thus granted an' answer was filed, which went to the merits of the case, and shortly afterwards the rule was discharged.

But the court below filed no opinion, and we are therefore without information as to whether it considered the answer, in dismissing the rule, or whether its action was based simply upon an examination of the petition. If the petition was insufficient the alternative writ was properly refused.

Turning to the petition we find that it sets forth, that petitioner is the father of George Miller, who is fourteen years of age, and who was, prior to the month of May, 1900, duly entered and admitted as a pupil in the Keystone Public School, at Nineteenth and Ludlow streets, Philadelphia; that in May, 1900, certain charges were made by the principal of said school against the said George Miller, to the school committee of said board, and the school committee thereupon undertook to expel the said George Miller from the said school, and he was thereafter denied admisson to the school by the principal and refused further instruction therein.

The petition admits inferentially that a hearing upon the charges was had before the committee, but complaint is made because the examination and hearing was not given to the boy *489at a full meeting of the board. But it is alleged that the matter was afterwards brought to the attention of the full board, and a hearing before them was demanded, which was refused, and the action of the committee was approved and sustained. Sufficient appears from the allegations of the petition to show that charges were made against a pupil of the school, which charges were investigated by a committee of the board of directors, and after a hearing the pupil was expelled. It is not averred that the full board took no action with regard to the matter, but only that it refused to order another hearing before the full board. Under the act of May 8, 1854, power is given to the board of directors, on full examination and hearing, to suspend or expel from the school all pupils found guilty of refractory or incorrigibly bad conduct. The requirement is that the examination and hearing shall be full, but this does not necessarily mean that it should be by the full board. We see no reason why.the investigation of charges and the conduct of a hearing may not be delegated to a committee of the board, when the action of the committee is afterwards reported to, and is reviewed and considered and sustained by the full board. Especially in Philadelphia may this method be followed, as section 9 of the act of March 8, 1818, which is still in force, authorizes the school directors of various school districts of the city of Philadelphia to divide themselves into as many committees as there may be schools, so that every committee may have the management of one school only.

We conclude therefore that the petition discloses the fact that the board of directors have acted upon a matter which inquired of them the exercise of discretion and judgment. As mandamus will not lie to control the exercise of discretion, or to determine in any way the decision reached thereby, the court below would have been justified in holding that the petition did not present the substance of a case for mandamus, and if put upon that ground, the writ was properly refused. The amended petition presented by appellant in no way strengthens his case. On the contrary it only sets forth more clearly the fact that a hearing was held by the committee, that the testimony of witnesses was heard, and that in the exercise of judgment and discretion, a conclusion was reached, *490which the full board approved and adopted, and declined to change or modify at the request of appellant. The right of judgment was in the board, and we will not attempt to regulate its exercise.

The assignments of error are overruled, and the judgment is affirmed.