96 P. 922 | Mont. | 1908
delivered the opinion of the court.
This is an appeal from a judgment directing a peremptory writ of mandamus to issue requiring the defendants, trustees of school district No. 35 of Madison county, to hold an election to determine the question of the location of the district schoolhouse. It is alleged in the affidavit, in substance, that the' relator is a resident and taxpayer of the district, that for the past nine years the district has owned and used a schoolhouse, with the necessary furniture, fixtures and accessories, situate near the center of the district; that during the first four of these years the land occupied by it was public land of the United States; that during the past five years it has been owned by Staudaher & Johnson, who have acquired the paramount title; that on September 24, 1907, these owners notified the defendants, as trustees, to remove the building from their land; that the defendants Lyons and Koch on or about October 26, 1907, caused to be built in a remote part of the district a new
To the alternative writ the defendant Jones made no appearance or answer. Defendants Lyons and Koch made de
A trial of the issues resulted in findings in favor of the relator upon all the allegations made in the affidavit. The court further found that at a meeting of the board of trustees on September 27, 1907, by a majority vote, Lyons and Koch voting in the affirmative, it was determined to remove the school
In State ex rel. Jay v. Marshall, 13 Mont. 136, 32 Pac. 648, in considering a similar provision, found in the Compiled Statutes of 1887 (Compiled Statutes 1887, Div. 5, sec. 1885), and defining its purpose and scope, this court, through the late Justice De Witt, said: “When the statute provides that the school trustees shall have power to remove ‘sehoolhouses’ only when directed by a vote of the district so to do, we are of opinion that the term ‘sehoolhouse’ does not mean simply the house, but refers rather to the school plant, including the general equipment, furniture, maps, charts, globes, and pupils and teacher. The rural school districts are large geographically, and small in population. The school should naturally be located to best serve the greatest number. Its location can in no way be so satisfactorily determined as by a vote of the electors of the district. Such determination is in accordance with the American principle of majority rule. We take it that it rarely, if
It cannot be claimed that the circumstances stated in the affidavit presented such an emergency as required the board to , act at once. And this statement is fully borne out by the findings of the court that the notice was given by Staudaher & Johnson on September 24, 1907; that on September 27th the board held a meeting, at which the new site was selected and the clerk instructed to call for bids for the erection of a building upon it; that on October 10th another meeting of the board was held, at which, when it appeared that no bids had been received, it was agreed that the clerk should advance the necessary funds and that the building should be erected on the new
Is mandamus the proper remedy? In their second contention the defendants assert that it is not. In our opinion, however, it so clearly is that for authority we need refer only to the statute, which declares: “It [mandamus] may be issued by the supreme court or the district court, or any judge of the district, to any inferior tribunal, corporation, board or person, to compel the performance of an act-which the law specially enjoins as a duty resulting from an office, trust or station, or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.” (Code Civ. Proc., sec. 1961.) The relator is a party beneficially interested, and was entitled to make the application. (Code Civ. Proc., sec. 1962; Chumasero v. Potts, 2 Mont. 242.)
It is no justification of the action of the defendants for them to say that the writ will control their discretion. They have no discretion in this matter. As heretofore said, when eircum
The judgment is affirmed at the cost of appellants.
Affirmed.