162 N.W. 300 | N.D. | 1917
(after stating the facts as above). Various constitutional questions have been raised in this case. It is not necessary, however, to consider or to discuss any of them, as we are satisfied that the ■acts sought to be enforced are without statutory authority. We are satisfied, indeed, that both the order of the school board and the election were void, and that the lease of the new building and the removal of the school thereto were absolutely unwarranted by the law and outside of the power of the directors.
It is a self-evident proposition that the public schools of the state are under legislative control, and that school directors have no powers, except those which are conferred by the statutes upon them. A perusal of §§ 1174,1184, 1185, 1187,1188,1192, 1332, and 1461 of the Compiled Laws of 1913 will, we believe, make it apparent to all that the only instance in which a common-school board may lease a building is in the case where there are nine children of school age who reside 2J miles from the schoolhouse already erected, and when an additional school is needed for such persons. Even in such a case there must be a petition signed by the persons charged with the support, and having the custody and care of the children. It is apparent that in every other case it was the purpose of the legislature that the public schools in the so-called common-school districts of the state should be exclusively conducted in buildings which are not only controlled by, but which are owned by, the public. This intention, we believe, to be clear.
The only justification, indeed, for the action of the board which was taken, and for the election which was held, was § 1184, of the Compiled Laws of 1913. This section provides that: “whenever in the judgment of the board it is desirable or necessary to the welfare of the schools in the district, or to provide for the children therein proper school privileges, or whenever petitioned to do so by one-third of the votes of the district, the board shall call an election of the voters in the district at some convenient time and place fixed by the board, to vote upon the question
Section 1185 also provides: “Three notices of the time, place and the purpose of such election shall be posted in three of the most public places in the district at least fourteen days prior to such meeting. If a majority of the voters present at such meeting shall by vote select a schoolhouse site or- shall be in favor of the purchase, exchange or sale of the schoolhouse, as the ease may be, then the board shall proceed to carry out the decision of the voters of the district, provided it shall require a vote of two thirds of the voters present and voting at such meeting to order the removal of the schoolhouse, and such schoolhouse so removed cannot again be removed within three years from the date of such meeting; and, further, if the question of removing the schoolhouse fails to carry, then the question of removing such schoolhouse cannot again be raised within one year, etc.”
It is perfectly clear that these sections only authorize and relate to the selection, purchase, or sale of a schoolhouse site, or the erection, removal, or sale of a schoolhouse.
Section 1188 of the Compiled Laws of 1918 provides as follows: “If a petition signed by the persons charged with the support and having the custody and care of nine or more children of school age, all of whom reside not less than miles from the nearest school, is presented to the board, asking for the organization of a school for such children, the board shall organize such school and employ a teacher therefor, if a suitable room for such school can be leased or rented at some proper location not more than 2¿ miles distant from the residence of any one of such children, and if no suitable room for such school can be leased or rented, the board shall call a meeting of the voters of the district for the selection and purchase or erection of a schoolhouse, as provided for in § 1185. If at such meeting no such site is selected, or if it is not voted to erect or purchase a schoolhouse for such school, the board shall select and purchase a schoolhouse site and erect, purchase or move thereon a schoolhouse at a cost of not more than $1,200 for such schoolhouse and furniture therefor; provided, that the provisions of this section shall not apply
This section, as we have before stated, merely applies to cases where there are students living 2{- miles from the established school, and some other provision is necessary for their accommodation. There is not, indeed, to be found anywhere in the statutes any authorization for the leasing of a building for school purposes when (as the record shows in the case at bar) there is already in the common-school district a school which is owned by the district, which is within 2£ miles of the students, and which is adequate to the needs of the district.
The judgment of the District Court, therefore, must be reversed, and the trial court is directed to enter an order quashing its mandatory writ.
