*1 promise, brought upon as a had the same action been of by in the absence fraud not be allowed, defendant would parol vary equivalent, the same to contradict or testimony. Exhibit A was said, we have since, But plaintiff is, it effect as, introduced nothing part more than an admission prom money, receipt written no with defendant permitted repay court should have it, ise explain she in this case to what meant defendant Grocery Hager, why signed v. 75 Colo. Co. she it. Aubin & 829; v. Marshall Field 227 Pac. De St. 554, 563, 199; McCain, 62 Pac. Brewer v. 27 Colo. Co., 822. 41 Pac. 21 Colo. and the cause reversed, is therefore
The any, proceedings, if to be consistent remanded, further opinion. with Dehisoh, Me. Justice Me. Chief Adams Justice concur.
Me. Butler 12,079. No.
People Buckland, et al. Lamme ex rel. June
Decided *2 for plaintiff H. in error. Mr. George Blickhahn, Mr. Charles defendant error. Hayden, Mr. Herbert M. Munroe, amicus curiae.
En Banc.
Mr. Campbell delivered the court.
This writ of mandamus was sued out of the district county by court of Huerfano S. Julian Lamme as re- against lator, Charles S. et Buckland, al., as members constituting high the Huerfano school committee, principal Yost, J. W. object of the school. Its was to respondents high to reinstate in the pupil Lamme, who had been a therein expelled who from the school for her failure and regulation comply the com- a rule or with
refusal
pupils.
girl
prescribing uniforms to be worn
mittee
respondents filed a demurrer
writ,
To the amended
respondents
Thereupon
filed
was overruled.
to which answer
writ,
return to the
answer and
relator’s
The
overruled
return relator
court
demurred.
whereupon
upon it,
to stand
elected
and' he
demurrer,
mandamus and
quashed
writ
the alternative
with
writ
is here
action. The relator
dismissed
judgment.
error to review
ground upon which
does not disclose
The record
ruling;
it was because
whether
its
court based
district
high
committee, and
the rule
reasonable exercise
enforcement,' constitute a
statute, or
the committee
vested in
ordinary legal
*3
adequate and sufficient
an
had
relator
remedy.
quashed
action
and the
dis-
was
If the writ
right,
though
judgment,
ground,
upon
the first
missed
upon;
pass
if it was
upon
ground
we
a
do
right
ground,
latter
based
proceed
right
to show.
reason
we
for the
Assembly
L.
8460 to
C.
in sections
Our General
system procedure
complete
provided
of
a
has
pro-
litigating
of this nature. Section
controversies
any
by
any person aggrieved
order
decision or
vides
district,
of a school
of directors
district board
may,
designated
fact,
within a
of law or
time
matter
appeal therefrom to
made,
decision has been
after
proper
county superintendent
county.
of
Sec-
provides
person,
itself,
that the board
or such
tion
by
county
feeling aggrieved
the decision or order of .the
may,
appeal,
superintendent
within
time,
on
a fixed
appeal
education,
state board of
therefrom
superintendent
public instruction,
the state
of
consists
attorney
secretary
general state. Colo.
Const,
legislation by
§ 1.
art.
This
our General As-
clearly
purpose
sembly
a
to vest in the school
indicates
adjustment
and settlement of such
authorities
con-
judi-
troversies.
mandamus
is a
While
under our code
proceeding
cial action or
character,
of a civil
ordinary
proceeding
an
action or
available as matter
right.
only
It is maintainable
is no
when there
other
adequate
remedy,
and the courts are invested with
to its
In consonance
a sound discretion as
issuance.
with the common law
section 342 of
rule,
our Code of
Procedure declares that the writ
Civil
shall not be issued
plain, speedy
adequate
where
a
case
there is
ordinary
p.
§
course of law. 38
C. J.
adequate remedy by ap-
Where
statute
peal,
public
or
from an
otherwise,
order
a
officer or a
public
mandamus should be
board,
refused. Since
permits appeals by
this state a statute exists that
aggrieved person from an
order
a school
high
county superintendent
committee,
to the
schools,
from his decision to the state
board
edu-
cation, in all school matters
lawof
or fact, mandamus
by the courts does
not,
the first
lie.
instance,
When
high
was excluded from the
school, where
privileged
pupil,
she was
to be a
for her failure to con-
form to this rule or
of the school committee,
duty
it was the
relator,
dissatisfied with the
expulsion,
statutory remedy
first
invoke the
of an
n appeal
county superintendent
of schools, and, if
there defeated,
to the state board of education,
resorting
before
to the courts for relief. The fact county superintendent
the statute the
is ex
officio
high
change-
member of the
school committee does not
*4
county superintendent,
the rule. The
as such,
acts
capacity, and as a
one
member of the school board in
and the authorities
another,-
that,
are
the absence of
contrary,
disqualify
this
a statute
the
not
does
him, entertaining
deciding
appeal from the
school
committee,
school Grosjean
he
ex officio
of which
a member.
v. Board
App.
40
Education,
Cal.
In reading require of Bible the the board to aof school speaking at the Denison, Mr. public very beginning schools, opinion, “Some we said: grant- objections think certain technical are 'as (mandamus) this, a ing in such case that writ urged parties we do not notice them, not have since the say objections except to this is not to case be these authority expres- regarded against as an them.” This statutory least, at an intimation that remedies is, sion reviewing public decisions school authorities resorting to be invoked matters should before present respondents, counsel for the In the case courts. objected proceeding by has to this here, both below ground instance, first on that the mandamus, in the plain, speedy provided adequate ordi- has statute Assembly, having nary remedy. The General so clearly policy disputes of this indicated character by school themselves, first determined officials be should unnecessarily courts should not time of the that the aggrieved least until the hold that at we consumed, statutory remedy he party en- exhausted has grievance heard the courts. have his titled of decisions other courts that not unaware areWe remedy statutory from decisions remedy. In et Clark, exclusive al. boards 117 Miss. 78 So. it was Trustees, v. Board of providing of that state for such a statute held under appeals, said covers administrative mat- the court ag- only, is not exclusive and an ters unlawfully deprived grieved parent, has been whose child public might privileges school, resort to the for relief. And instance, first there are courts, courts, while still other courts of other like decisions person pursue aggrieved required first to remedy provided by legislature. ordinary legal In to- find, able to or which our have been that we no case any such decisions called, were made been has attention *5 complete our statute on under statutes so full and as subject. High District, In School District v. School ag- point person App. 510, was made that grieved by any or order of a board decision may in take an directors, fact, matter law or of therefrom to the and from and, therefore, to education, decision the state board of brought in in there, that the action the court was this instance, first could not be maintained because statutory remedy Judge To is exclusive. this contention King in his said that the sections the statute authorizing appeals such do not confer jurisdiction boards to exclusive decide all controversies persons, between school boards and other natural corporate, aggrieved thereby. or judge who feel The learned pending against
then said action there statutory liability, quasi school board related “to a of a only contractual Avhichthe nature, effectual plaintiff having- is, to be, must some tribunal monej^ judgment.” to render and enforce a And provides expressly since section C. L.
these sections of the statute under consideration shall county not be so construed to authorize either the superintendent or the state board to render a money, only the action there could be maintained justice. a court of But the this said, connection important pertinent and this observation is what “Although they (sections 8460-8466) here: may, and, impliedly jurisdiction Ave think, do, [i. confer e., jurisdiction] per- exclusive over certain classes cases taining language gives educational This matters.” color to the contention of the school board here that the subject controversy matter of this is within the exclusive jurisdiction necessary, of the school authorities. It is not present purpose, pass upon however, for our im- this portant question. enough say It is that this mandamus prematurely brought. action opinion indicating Without toas reasonableness of *6 or enforce- committee,
school the reasonableness judgment must of the district case, ment this may though writ even the alternative be affirmed, quashed wrong of dis- for a reason. The been missal, however, already given, right,
for was the reasons prejudice it without affirmed, is therefore hereby given right his re- to renew relator, who is high quest daughter for the reinstatement his in the By re- able, this course he will be case the school. quest appeals, fit, if he refused, is to take the sees judg- provisions of The the statute. accordance with pro- remanded, ment further the cause is'affirmed ceedings, any, expressed to be the views with consistent opinion. concurring, except All Mr. the Justices Justice Walker specially dissenting. Mr. Chiee con- Justice Denisok curring. Mr. Walker, dissenting. opinion
I am not able to of the court. concur ground upon The writ of sole which relator seeks the that rule for the violation which mandamus is beyond was 'the school was excluded Upon high committee to enact. of the school lawful pass, ground of the court declines to this county statutory appeals to the relator to the it remits the superintendent of edu- to the state board of schools and cation. is the that mandamus are unanimous
The authorities pupil proper the reinstatement of a unlawfully 735; J. from school. C. excluded 110 N. Neb. W. State, R. L. Vermillion 247; C. page cases collected 401, and numerous Ann. 736, 15 Cas. changed agree page rule is I this can on system ap by the existence of in this state affected peals the state board education. terminate with system where the order all, available at Whether high by complained committee, school is made appeals extremely providing The act doubtful. county years high many act was before the
enacted appeal provided passed, an order of for is from ’ ’ ‘‘ county high school The of directors. board the district provi- appeals embody these reference act does applicable they should be it was intended sions, and that hardly it made presumed it when is considered can appeals act under the who person aggrieved the board was the first resort of give required of the notice who was directors, of appeal secretary officioa member ex secretary. county high and its committee, the intention I not think that was At all do events, *7 county superintendent Legislature and in to vest pass upon of education in the state board present presented question case. as is of law a may involving Undoubtedly the inter- cases be provisions pretation of the school administrative of the authorities of these school the decisions law in which uniformity in the con- to the end that invoked, should through- may prevail application of the law struction power, question re- to be a naked out the state, by not within is considerations, fundamental solved this class. made Dist. No. 3 v. Hale,
The observation School though with reference Pac. made 15 Colo. controversy arising contract, out of a teacher’s to a imperative pertinent “In the absence of an here: seems necessity, it never be held that a tribunal which is and which is should incompetent suitors, relief to the to afford by regulated none of the rules and meth- and restrained satisfactory investigation, procedure to a essential ods supposed legal principles which are to enter those nor every part can oust the contract, form a into and country jurisdiction powers con- courts upon and constitution.” them statutes ferred Legislature that the if it should be admitted For even county superintendent the state that the intended questions jurisdiction of such as are take board should presented apparent statutory it case, in this these only give adequate relief, fail to but that tribunals not give present they In relief whatever. cannot should be successful before state board case, relator ipso of that board would not decision of'education,.the school, nor has that restore his facto machinery by any legal which it could board high A to admit her. resort to the court school committee necessary the school district should unless would still be vpluntarily yield of the state board’s
to the moral suasion again opinion; it when relator once And forth for him to set the decision not be sufficient would upon binding the courts. board, of the state App. pages People 230 to Horn, Van required plead t-o still be 978. He would Pac. invalidity as a matter of law. of the rule establish procedure would be that relator of the The net result exactly before, situation as the same would be daughter school, from the remained excluded would have applies will had the he then to which and the court lay- are two of whom benefit proposition law. But in order to defeat men, uniformly necessary held that it is mandamus, petitioner available to should be the other efficacy, obtaining specific equal in for the at least *8 prayed as the writ of mandamus would be if for, relief 49 v. 111 569; Thomas, Bell 38 C. J. issued. Pac. 76. necessary prosecute appeal to an to the it is
That obtaining before a writ of manda authorities educational pupil wrongfully compel readmission of the tomus specifically has been held from school excluded Independent Clay following Dist., School 187 cases: v. Independent v. 47; N. Valentine 174 W. School Iowa, 89, Baumhover, 334; 174 N. W. Knowlton v. Iowa, 187 Dist., Germany, 202; 166 N. W. Hobbs v. Iowa, 691, 82 1 94 Miss. 515. In the case 49 So. Knowlton v. of. supra, thor- “The rule is court said: the Baumhover, granted oughly while the discretion that, settled well only by be reviewed of directors can to the board statute appeal yet, it ‘acts where to the powers and jurisdiction, or has exceeded without attempted capacity to done or has in an official some act right do, the courts has not a which it do ’ ’’ unauthorized act. jurisdiction to set aside county superintendent appeal is to the In Iowa the Mississippi superintendent. also So the state thence to county superintendent appeal and from to the provi- with the education, state board of to the decision final. decision shall be that the board’s sion question involved where, has been cited No case regu being power to make the school board of the must first be had held that it was resort People lation, Board ex rel. Ulrich v. authorities. educational superior court of the a decision 4 N. Y. S. Education, City, mandamus because York denied of New principal appeal of the from the decision no had been from that board trustees, the board a school to appears however that It of education. the board question Certainly presented it was of fact. was one question to make of the school board regulation v. Board ex rel. involved. State Jefferson Law, 59, N. Atl. denied the writ J. Education, petitioner appealed had not mandamus because appear in of education. It does not the state board authority any question of the school case that a rule but on involved, to enact or board contrary opinion distinguished that case from Trustees, Law, 76, N. J. ex rel. Pierce School State was issued to the readmission mandamus where unlawfully negro from had been excluded of a child who Undoubtedly holding there are authorities school. issue where there is an will not
mandamus appeal, by where the virtue tribunal, inferior board statutory proceeding, step in the as a statute, *9 ultimately readies the Here, however, courts. appeal
is to denied, because there is an to a board provided no whose decision to the courts is procedure for. It seems clear that the to which the re- relegated by majority opinion lator is will be barren except might -any results, follow from other delay course, which would the final settlement of the con- troversy and leave room for its chance settlement act acquiescence parties themselves. majority
For I the above reasons dissent from the opinion, disposition view of the which is made of express opinion upon I case, do not the merits of controversy regarding the reasonableness rule.
Me. Chief Justice Denisou specially concurring. disagree majority opinion I with the for the reasons given dissenting opinion in the of Mr. Justice Walker. I concur, however, affirmance of the be- cause the rule of the local board is valid reasonable, is presumptively reasonable and is not shown the evi- dence to be unreasonable.
No. 11,874.
Radovich v. Radovich.
Decided June