210 P. 1000 | Idaho | 1922
This is a mandamus proceeding brought by respondents against appellants as trustees of Common School District No. 6 of Custer county, alleging that they have unlawfully removed the school from the place, where it was lawfully established and has been for a long time
C. S., sec. 887, provides that a schoolhouse shall not be moved, nor a new site be designated except when directed by a two-thirds vote of the electors of. the district voting at an election held for that purpose. Whatever may be the power of a county board of health to close a schoolhouse on the ground that it is unsanitary, the trustees cannot move a school to another location without authority from the electors. There is no contention that authority to move the schoolhouse was granted - by the electors. Appellants contend that the power vested in the state board of education by the constitution, art. 9, sec. 2, and C. S., secs. 790, 800 and 803, and Sess. Laws 1921, chap. 215, sec. 49, excludes any jurisdiction or power on the part of the courts to
However, we conclude that the part of the judgment which orders appellants to make all necessary and proper repairs and additions to the school building, should it be found that such are needed, and to accept donations of material and labor, having proper regard to the financial conditions and resources of the said school district, is not within the issues presented by the petition for the writ and the answer. Moreover, by the use in the judgment of the words “should it be found that said changes and repairs should be needed” the matter is left to the discretion of appellants. No judgment, especially a permanent writ of mandate, should leave the question of whether or not it should be enforced to the discretion of the parties to whom it is addressed. For these reasons we conclude that this portion of the judgment is improper.
Appellants contend that the district court erred in taxing costs against them, claiming that the costs should have been assessed against the district under the provisions of C. S., sec. 894. This section applies only to actions properly brought for or against a school district and not to an action like the present, brought against the trustees on account of their wrongful act. The lower court did not err in this regard.
Other matters assigned as error we do not think it necessary to expressly mention. The action is remanded to the district court, with instructions to modify the judgment and