25 S.D. 74 | S.D. | 1910
This is a proceeding in mandamus seeking to compel by mandate of the court the division of a school district, The court made findings of fact and conclusions of law, as follows : That on the 12th day of March, 1907, a duly and legally petitioned, called, and conducted election was held for the purpose of dividing school district Ncr. 23 of Meade county into two new districts, which said election resulted in ten votes being cast in favor of the proposed division and two votes in opposition. That thereafter the matter of said proposed division duly and regularly came up for action by the board of county commissioners and the superintendent of schools of Meade county, which said officials refused and to this day refuse fa divide the said school district in accordance with the return of said petition and election. The said school district No. 23 is eighteen miles long and six miles wide, containing parts of three congressional townships, but no civil township or any part thereof. That the boundaries of the two proposed districts will not conform to the boundaries of a congressional township, and the line of division will not coincide with a congressional township line. That the new district to be formed from the eastern part of school district No. 23 contains only four children of school age. That the school district is free from all indebtedness of whatsoever nature. As conclusions of law from the foregoing facts, the court find's: (1) That said election was regularly and legally called, petitioned, and conducted. (2) That the board of county commissioners and superintendent of schools of Meade county are under no legal obligation to divide said school district in accordance with the said return of petition and election. (3) That the defendants are entitled to a judgment against the plaintiff dismissing the case upon its merits and for their costs to be taxed against the relator!
Judgment was thereafter rendered and entered in accordance with :said findings of fact and conclusions of law dismissing said
There is 'but one question before us for review, and that is: Does the statutory provision give the special board any discretionary power- in the matter of the division of school districts, or is their duty only ministerial? If discretionary, then mandamus will not lie. If ministerial, then the plaintiff was entitled to judgment. As we view this case, it must be governed by section 69, c. 135, Daw 1907. Section 68 of that chapter does not relate at all to division of school districts, but relates solely to the original creation of original districts by the board of county commissioners alone, in newly organized counties, and has no relation whatever to division of districts already in existence by a special board composed of county commissioners and county superintendent of schools acting together jointly. It appears from the record that this matter was presented to this special board in July, 1907. At that time the repeal of section 2324, Pol. Code, had taken effect by virtue of section 245 of chapter 135, Laws 1907, repealing chapter 22 of the Revised Political Code, of which 'section 2324 was a part, thus leaving said section 69 as the only authority then existing for division of school districts. This section 69 provides that “in any county school districts may be divided as follows,” etc. The terms of this section are general and apply to any and all kinds of districts, whether one mile or eighteen miles long, whether in a civil township or not, only that
The judgment of the circuit court is therefore reversed, and it is directed to enter judgment for plaintiff commanding the defendants by mandate of the court to divide said school district No. 23 in accordance with said petition and election returns.