467 S.W.2d 283 | Mo. Ct. App. | 1971
This appeal arises out of the action of the trial court sustaining defendant’s motion to dismiss plaintiffs’ petition. The appeal was first taken to the Supreme Court of Missouri for the reason stated by plaintiffs that the cause involved a constitutional issue. That court found there was no mention made of the constitutional issue in the “Points Relied On” in plaintiffs’ brief. Since no other jurisdictional ground existed, and the constitutional issue was not properly raised or preserved, the case was transferred to this court. St. Louis Teachers Association v. Board of Education of the City of St. Louis, Mo., 456 S.W.2d 16.
To support their requests for this relief, the plaintiffs alleged facts in Count I which are adopted by reference in Count II, to the effect the St. Louis Teachers Association has requested the board to recognize that it represents the greatest number of teachers in the City of St. Louis and is therefore a legitimate negotiating agent for these teachers. It then relates that the board has denied this request and has stated as its reason that it would be illegal for it to enter into the negotiation of agreements with such an organization. The petition further states the board has denied it has authority to recognize an exclusive negotiating agent on behalf of the teachers. It is also alleged that members of the school board “have stated repeatedly and have announced to the public media of press and television that the desire of the St. Louis Teachers Association to represent its members and the desire of the members to secure such representation, * * * is illegal.” This, it is stated, damages the reputation of the teaching profession and has caused irreparable harm.
Plaintiffs contend the trial court erred in sustaining defendant’s motion to dismiss the petition. They assert it stated a justiciable controversy which was a proper matter for submission in a declaratory judgment action. Defendant counters by maintaining that the petition does not demonstrate the existence of a justiciable controversy. We conclude that we must agree with defendant.
It is true that the petition alleges repeated requests to the board that it recognize the teachers association as representative of the greatest number of teachers in the City of St. Louis and that it should therefore be recognized as the negotiating agent for the teachers. This is coupled with an allegation of denials of these requests by the board. But nowhere is it alleged that teachers who are members of plaintiff association have appointed the association as their bargaining agent to represent them in negotiating with the board on any specific or definite problem or request for board action. Nowhere is it stated that association representatives presented or attempted to present a specific or definite problem, grievance or request to the board and that the board refused them audience. There are no allegations as to the nature of the problem or problems which they have attempted to discuss or negotiate. A definite statement of facts describing a controversy ripe for determination is nowhere to be found. The petition merely alleges in a very general and nebulous fashion some difference of opinion in a general matter of concern and asks the court for an advisory opinion on related legal problems which may or may not come to pass.
In speaking of the requirements of presenting a justiciable controversy under
In the present case the petition did not set out facts concerning a specific and definite offer or attempt by plaintiffs to open negotiations with defendant in regard to a certain and definite problem which plaintiffs urge as a proper and suitable matter for negotiation. Furthermore, the petition fails to seek any declaration of legal relations under a statute as authorized by Section 527.020, RSMo 1969, V.A.M.S. No reference is made in the petition to Section 105.510, RSMo 1969, V.A.M.S., which authorizes public employes to organize and bargain collectively but excludes teachers of all Missouri schools.
Although not relied on in plaintiffs’ brief, it could be argued that the portion of Count I seeking an injunction should not have been dismissed. Examination of the pleading, however, reveals that it alleges the members of the Board of Education have stated that the desire of the teachers’ association to represent its members and the desires of the members of the association to secure such representation are illegal. The prayer does not seek to enjoin this. Rather, it seeks to enjoin the members of the board from saying that it is illegal for the Board to deal with a teachers’ association.
We conclude the court below was justified in sustaining the motion and dismissing the petition.
We distinguish the case of City of Cam-denton v. Sho-Me Power Corp., Mo., 237 S.W.2d 94, relied on by plaintiffs. There the city was planning on purchasing or constructing an electrical distribution system. A bond issue had been approved by the voters. The defendant utility contended it had the right to continue serving the public and the city beyond the expiration of its franchise because of a lighting contract executed by the mayor and city clerk, without the consent of the voters, and as to which there was no approval by the city
The remaining point relied on by plaintiffs to reverse the judgment below is as follows :
“The Board of Education of the State of Missouri was created by the legislature and derives all its power and duties therefrom, and therefore, its subdivisions thereof are subject to the powers and duties delegated.”
Setting out this abstract statement without pointing out how it is related to any action or ruling of the trial court is contrary to Civil Rule 83.05(e), V.A.M.R. Such a statement preserves nothing for appellate review. Chase Realty Company v. Dorel Company, Mo.App., 447 S.W.2d 814, 815[ 1].
No complaint has been made about the trial court dismissing the petition without leave to amend. Rather, after the original order was entered, plaintiffs requested and obtained a nunc pro tunc correction of the order to show that the dismissal was with prejudice.
Judgment is affirmed.
PER CURIAM:
The foregoing opinion by WEIER, C., is adopted as the opinion of this Court. Accordingly, judgment is affirmed.
. In this connection, the exclusion of teachers from this section has been held not to render the statute unconstitutional on the basis of an arbitrary and unconstitutional classification. State ex rel. Missey v. City of Cabool, Mo., 441 S.W.2d 35, 43 [15].