School District Township of Sioux City v. Pratt

17 Iowa 16 | Iowa | 1864

Lowe, J.

I. pleading: redundancy: motion, etc. It is not competent to demur unless the objection falls within one or more of the six cases enumerated in § 2876 of the Revision. It is clear that the grounds of demurrer in this case must come un(jer ^be fifth specification, if any, namely, the facts set out are not sufficient to constitute a cause of action, or that it states some facts which avoids the cause of action.

In tbe original petition is set out with much particularity the contract entered into between the board of directors of said school district, and the defendant, alleging a want of authority to make the same, and stating acts on the part of both contracting parties, which, if true, were manifestly fraudulent and illegal, and entitled the plaintiff to the relief asked. That a sufficient cause of action is stated in this petition, will hardly be questioned. But after the filing thereof, and after the commencing of this suit, a taxpayer of said district, under § 2133 of the Revision, appealed from the action of the board of directors in the premises, to the county superintendent, and after a full hearing, the contract aforesaid was declared illegal and void, and thereupon the plaintiff filed an amended or supplemental petition, setting out, among other things, the result or decision of the county superintendent upon the conduct of the board of directors in relation to the building contract. The statement of this additional fact added nothing to the plaintiff’s cause of action; indeed it was redundant or impertinent matter, which, upon motion, would very properly be stricken out. But, instead of making such a motion, the defendant demurred, and he demurred to the whole, the original as well as the amended petition; and the same was sustained to that portion of the amended petition which included the action of the county superintendent aforesaid. This did not touch or affect the plaintiff’s real cause of action. It only reached a statement superfluous in itself, but which was designed, perhaps, to render broader and clearer plaintiff’s cause of action. It is not, however, the office of a demurrer to object to pleadings, because they embrace too much. Such defects are to be reached by motion.

2. School District, directors. In argument it is claimed that the statute referred to, granting an appeal from the transactions of the board of scbool directors to tbe county superintendent, clothes tbe latter officers with judicial power, and to that extent is invalid. This is believed to be a misapprehension.

None will claim that tbe statute, defining and regulating tbe duties and powers of tbe scbool board of dffiectors, invests them with judicial power. Tbeir acts and tbeir authority in tbeir nature are ministerial, and not judicial. Tbe superintendent, in reversing tbe same on appeal, is limited, necessarily, to tbe same subject, and to tbe exercise of tbe same bind of power, and when tbe statute says bis decision shall be final, it means simply as a ministerial act. This is further manifest, from tbe fact that § 2140 of tbe Revision, on tbe same subject, expressly withheld from tbe superintendent tbe power to render judgments for money, thereby showing that neither party is to be shut up to bis decision, so far as tbeir rights and remedies by legal procedure are concerned.

"We need not say tbe other ground of demurrer finds no support, and tbe order sustaining tbe same is

Reversed.