126 Minn. 367 | Minn. | 1914
This is an appeal from a judgment directing that a peremptory writ of mandamus issue commanding defendant, as clerk of a common school district, to draw an order upon the district treasurer in favor of relator for wages for teaching the district school.
Defendant invokes the rule that mandamus will not lie to control the action of a public officer in matters which involve the exercise of •his judgment or discretion. This rule is well settled, and defendant cannot be required to issue this order if, as a condition precedent to its issuance, there was any matter to be determined by him which involved the exercise of his judgment or discretion. State v. Teal; 72 Minn. 37, 74 N. W. 1024. The action was submitted upon the petition for the writ and defendant’s demurrer thereto, hence all the facts alleged are admitted. It is sufficient for present purposes to say that relator, a duly qualified school teacher, entered into a written
Defendant claims, however, that relator was not entitled to an order for her pay until a hill therefor had been presented to and allowed by the school board. Prior to the revision of the statutes in 190'5, the law expressly provided that the clerk should draw orders ■on the treasurer for teachers’ wages, and bills therefor were not required to be acted upon or allowed by the board before such orders were drawn. In the revision of 1905, several statutory provisions relating to the duties of the clerk were condensed and consolidated into one section, and the paragraph thereof providing for the drawing of orders is as follows:
“He * * *' shall draw and sign all orders upon the treasurer for the payment of money for hills allowed by the board for salaries of officers or for teachers’ wages, to be countersigned by the chairman.” Section 2759, G. S. 1913-,
The provisions of the revised laws, so far as they are the same as prior statutes, are to he construed as continuations thereof, and a mere change in verbiage will not be construed as altering the law, unless it is clear that such was the intention. State v. Stroschein, 99 Minn. 248, 109 N. W. 235; Becklin v. Becklin, 99 Minn. 307, 109 N. W. 243; State v. McDonald, 101 Minn. 349, 112 N. W. 278; Evans v. City of Redwood Falls, 103 Minn. 314, 115 N. W. 200; State v. Barnes, 108 Minn. 230, 122 N. W. 11; Northwestern Trust Co. v. Bradbury, 112 Minn. 76, 127 N. W. 386; Lockey v. Lockey, 112 Minn. 512, 128 N. W. 833. We discover no intention to change the prior law governing the manner of «drawing orders for the payment of teachers’ wages. The law requires
Defendant insists that the trial court erred in overruling the demurrer without granting leave to answer, and in entering judgment without notice to him. These questions cannot be raised upon this appeal. Defendant was not entitled to answer as a matter of right, and having made no application to the trial court for leave to do so, the question as to whether that privilege should have been accorded him is not before this court. The demurrer having been overruled, the relator was entitled to have judgment entered as upon default. Section 7816, G. S. 1913. Entering such judgment without notice, even if notice were required, was merely an irregularity for which defendant’s remedy, if aggrieved, was to make an application to the trial court for relief. Not having made such application, the question raised cannot be considered by this court.
Judgment affirmed.