236 P. 670 | Mont. | 1925
In May, 1924, the board of trustees of school district No. 1 in Cascade County adopted a resolution to the effect that, beginning with the opening of the school term in September, 1924, a tuition fee of $110 per school year would be charged each nonresident pupil attending the high school maintained by that district, the fee to be paid in advance. Later the resolution was amended to permit one-half of the fee to be paid at the opening of the term, and the remainder to be paid at the opening of the second semester of the term. Wyman Peterson, a pupil of school age attending the high school in district No. 1, paid the first installment of the fee for the school term commencing September 2, 1924, but refused to pay the second installment, and the board thereupon ordered *444 that he be excluded during the second semester unless the remainder of the fee was paid. W.W. Peterson, the father of Wyman, then instituted this action, and secured a temporary injunction restraining the board and its clerk from carrying the order into effect. The trial of the cause to the court without a jury resulted in an order dissolving the injunction and a judgment dismissing the complaint. From the judgment and order plaintiff appealed.
In his complaint the plaintiff alleges that he and his son are, and for a long time have been, residents of Cascade county and of school district No. 1 therein. That allegation is denied in the answer, and it is alleged affirmatively that plaintiff and his son are residents of Teton county; that the board made an investigation of the question of their residence, and determined that they are not residents of Cascade county or of school district No. 1. At the opening of the trial counsel for defendants interposed a motion to dismiss the complaint, because it failed to disclose that the plaintiff had exhausted his remedy at law; that is to say, it failed to disclose that an appeal had been taken from the order of the board to the county superintendent of schools of Cascade county. The court reserved its ruling upon the motion until plaintiff had presented his evidence, and then concluded that it did not have jurisdiction to determine the controversy, and sustained the motion.
It is apparent at once that the controversy revolves about the question: Is Wyman Peterson a bona fide resident of school district No. 1 or of Cascade county; or is he temporarily in district No. 1 merely for the purpose of gaining the advantages of the facilities afforded by the high school maintained by that district? If he is a bona fide resident of the district, he is entitled to attend the high school without paying tuition; if he is a resident of Cascade county but not a resident of school district No. 1, he is entitled to attend the high school under the provision made by Chapter 19, Laws of 1923, provided *445 a county high school is maintained by the county, and if in the judgment of the board "there is sufficient room." (Subd. 20, sec. 1015, Rev. Codes.) If he is a resident of Teton county, he is not entitled to attend the high school in district No. 1 of Cascade county except upon the payment of the tuition fee prescribed. These propositions are not open to serious controversy.
The single question presented by the appeal is: Did the trial court have jurisdiction, in the first instance, to determine the question of residence?
It is elementary that, if plaintiff had a plain, speedy and[1] adequate remedy at law, the trial court sitting as a court of equity did not have jurisdiction to control the action of the board by injunction or other means. (Wilson v. Harris,
Section 1056, Revised Codes, provides that: "Every public school not otherwise provided for by law shall be open to the admission of all children between the age of six and twenty-one years residing in the school district, and the board of trustees shall have the power to admit children not residing in the district," etc.
Section 1015 enumerates the powers and duties of a board of[2] school trustees, and among others, the power and duty "to determine the rate of tuition of nonresident pupils" are imposed upon the board. Since authority to admit nonresident pupils is conferred upon the board of trustees, and the power and duty to fix the amount of the tuition to be charged such nonresident pupils are likewise imposed upon the board, it follows necessarily that the board must determine, in the first instance, who are and who are not nonresident pupils. In this, and all like questions properly coming before them, *446 the members of the board act in a quasi-judicial capacity, and, with the proper exercise of their discretion and judgment, the courts will not interfere.
Thus, in Wilson v. Board of Education,
And in Commonwealth ex rel. Boyd v. School Directors,
Section 966 provides that the county superintendent of schools "shall decide all matters in controversy arising in his county in the administration of the school law or appealed to him from the decision of school officers or boards. An appeal may be taken from his decision, in which case a full written statement of the facts, together with the testimony and his decision in the case, shall be certified to the state superintendent for his decision in the matter, which decision shall be final, subject to adjudication or the proper legal remedies in the state courts."
If a controversy arises between a given school board and a[3] pupil over the question of the pupil's residence in the particular district, the controversy should be settled, if possible, by the school authorities, and resort to the courts should be had only in the event that the school officers are unable to satisfy the demands of the parties to the controversy. This was manifestly the intention of the legislature in enacting section 966 above. Under like statutory provisions, it is held generally that the courts will not assume jurisdiction of the controversy or undertake to adjudicate the rights of the parties until the remedy provided by law has been exhausted.
Thus, in School District v. Bank (Tex. Civ.),
In affirming the judgment of the trial court dismissing an action to enjoin the county superintendent from hearing an appeal, the supreme court of Colorado called attention to the statute authorizing such an appeal, and declared: "The procedure for reviewing the decisions and orders of the district board in matters of law or fact being provided and the officer and tribunal to hear and determine such matters having been thus designated, * * * the courts have no right to interfere with them in the proper discharge of such duties." (School District v.County Superintendent,
In Kinzer v. Directors of Independent School Dist. ofMarion,
These authorities are all in accord with the declaration of this court in State ex rel. School District v. Trumper,
A number of cases have been brought to our attention in which courts have assumed to act in the absence of an appeal taken to the school officials, but we find no conflict in these decisions with the authorities above cited. Those cases were decided because the facts in each thereof disclosed that the board under investigation had acted without jurisdiction or in excess of its powers. On such a showing the party aggrieved may apply, in an appropriate proceeding, to the courts. (Valentine v.Independent School Dist.,
Counsel for plaintiff contends that, in any event, the[4] defendants are estopped to raise the question of residence, for the reason that in September, 1922, and again in September, 1923, the clerk of district No. 1 made an enumeration of all children of school age residing in the district, and made report thereof to the county superintendent of schools of Cascade county, all in pursuance to the provisions of section 1051, Revised Codes; that in the enumeration made in each of those years the clerk included the name of Wyman Peterson; that the public school funds were apportioned to and received by district No. 1 based upon such enumeration, and the district received the benefit of an increased amount of public money upon the report and representation that Wyman Peterson was a resident of the district. It is alleged further that in September, 1924, the name of Wyman Peterson was again included in the enumeration of children of school age residing in district No. 1, but that later, without the knowledge or consent of plaintiff, the name was stricken from the enumeration roll.
If, during the current year, district No. 1 were receiving public school moneys based upon an enumeration which included the name of Wyman Peterson, there might be ground for the contention that the defendants are estopped to say that he is not a resident of the district (Board of Education v. Hobbs,
It is the general rule that, in order to create an estoppel by acceptance of benefits, it is essential that the party against whom the estoppel is claimed shall have acted with knowledge of the facts and of his rights. (21 C.J. 1207; 10 R.C.L. 694.) The rule was recognized by this court in Ely, Salyards Co. v.Farmers' Elevator Co.,
The judgment and order are affirmed.
Affirmed.
MR. CHIEF JUSTICE CALLAWAY, being absent on account of illness, did not hear the argument and takes no part in the foregoing decision.