86 Iowa 669 | Iowa | 1892
Lead Opinion
The proceedings in question are founded upon section 1798 of Miller’s Code, which is as follows: “In all cases where territory has been or may be set into an adjoining county or township, or attached to any independent school district in any adjoining county or township, for school purposes, such territory may be restored by the concurrence of the respective boards of directors; but on the written application of two thirds of the electors residing upon the territory within such township or independent districtdn which the schoolhouse is not situated, the said boards shall restore the territory to the district to which it geographically belongs; provided, however, that no such restoration shall be made unless there are-fifteen or more pupils between the ages of five and twenty-one years actually residing upon, said territory sought to be restored, and not until there has been a
The petition and showing appear to have been in compliance with the statute, except that it is not shown that there “has been a suitable schoolhouse erected and completed within the limits of said territory, suitable for school purposes.” It appears from the evidence in the case that there is no schoolhouse within the limits of the territory sought to be detached. It is not disputed, however, that there are schoolhouses in the district township of Grant. We think that, although by a literal reading of the proviso of the statute there can be no restoration until after a schoolhouse has been provided in the territory sought to be restored; yet, when the whole section is considered, together with the object and purpose of the statute, it is only where there is no schoolhouse in the district to which the disputed territory geographically belongs that the proceeding is not authorized. The application is required to be made by the electors “residing” upon the territory in which the schoolhouse is not situated.” Besides, the statute authorizing the formation of school districts from the territory of two or more townships was made necessary years ago by the sparsely-settled condition of the civil townships, and for the very reason that it was necessary to attach additional territory to afford school facilities to the. settler. Now, if there can be no restoration of the territory until after the erection of a schoolhouse thereon, the law can in most cases be defeated by the district to which the territory is annexed refusing to build a schoolhouse on said territory. Doubtless the
5. Mandamusappeal: reV. There are no other questions in the case which appear to us to demand consideration. The judgment will be reversed, and the cause remanded tor a new trial. The action is tor a man-damns, and is not triable anew in this court. Dove v. Independent District of Keokuk, 41 Iowa, 689. Reversed.
Dissenting Opinion
(dissenting).— Section 78 of chapter 172 of the Acts of the Ninth General Assembly provided that when a school district, as constituted at the time of the taking effect of an act entitled “An act for the public instruction of the state of Iowa, ’ ’ approved March 12, 1858, formed of parts of two or more civil townships in the same or adjoining townships in the same or adjoining counties, had a schoolhouse erected, which had not been destroyed, removed, or abandoned, such district should constitute a sub-district in and form a part of the district township in which the schoolhouse was situated. It further provided that the boundaries of such sub-district should not be changed, “except with the concurrence of the boards of directors of the townships interested;” but it contained the proviso that, upon the written application to the respective boards of directors of two thirds of the electors residing upon the territory within the township in which the schoolhouse is not situated, such territory should form a part of the district* to wnship to which it geographically belonged, and the respective boards of directors were required in either case to divide their districts in accordance with the provisions cited. Section 1 of chapter 125 of the Public Acts of the Fourteenth General Assembly contained similar provisions, which afterwards appeared in a revised form as section 1798 of the Code. Chapter 111 of the Acts of the Eighteenth General Assembly made the provision applicable to independent districts. As thus revised and amended, the language of the statute was less clear and definite in some respects than it was in the Act of the Ninth General Assembly, but it was explicit in giving to the boards of directors of the districts interested power to restore to the district to which it geographically belonged territory which had been set into an adjoining county or township, or
The opinion of the majority concedes that the language quoted, if literally construed, means that territory shall not be restored unless it contains a suitable schoolhouse; but it is said that to give it that effect would be to prevent a restoration in most cases. If that be true, the hardship which would result would be at least endurable, for if the territory is not restored, its citizens would continue to enjoy the school privileges for which their territory was detached; but, if the territory is restored by the boards of directors interested before it is provided with a schoolhouse, the citizens might be deprived thereby of all school privileges.