187 N.W. 720 | S.D. | 1922
Lead Opinion
POLLEY, J.
This appeal grows out of a school district squabble in Meade county. The school board moved a building that for several years had been used for school purposes from one part of the district to another. Plaintiff, on behalf of himself and several neighbors, claiming that the provisions of section 7494, Revised Code, relative to the removal of school buildings, had not been complied 'with, and that the school 'board had never been legally authorized' nor directed to move the said building, and being dissatisfied with the change, applied to the circuit court for a writ of mandamus directing defendants, as members of such school board, to return the said building to the place from which they had moved it. The writ was denied and plaintiffs appeal.
“The school board shall have power to direct the removal of •a schoolhouse to a more convenient location, upon the affirmative vote of a majority of the electors of the entire district, or upon the affirmative vote of two-thirds of the electors of such district voting upon the proposition at any regular election, or special •election called for that purpose, providing notice of the proposition for such removal to be voted upon shall have been given with the notice of such election. * * *”
This means that the proposition of moving schoolhouses may be acted upon at either a general or special election, provided notice that such proposition would be acted upon be given with notice of such election. The removal of a schoolhouse from one part of a district to another is not one of the ordinary proceedings of a school board. It is an extraordinary proceeding. The location of a schoolhouse is a matter of very great importance to the patrons of such'school. It appears from the evidence that the schoolhouse involved in this case was more than 3 miles farther
But mandamus will not lie to undo an act -done in violation of a public or official duty; and' that is precisely this case. In Gow v. Bingham, 57 Misc. Rep. 66, 107 N. Y. Supp. 1011, plaintiff petitioned for a peremptory writ of mandamus to compel' Bingham et al. to destroy photographs, measurements, and imprints taken of his person for use in his future identification as-a criminal. It was held that the mode in which the acts complained of were done was wrongful, and in violation of his personal liberty, and would entitle him to damages. The court, however, held that mandamus was not the proper remedy, saying that:
“In the absence of special statutory authority, a' writ of mandamus only lies to compel one to do what ought to be done in the discharge of a public duty, and not to undo what is improperly done, even though it may have been done under the color of performance of public duty.”
And the court further said:
“It is with great regret that I have been compelled to come to the conclusion that I cannot afford the relator relief in this form of proceeding.”
The judgment appealed from is affirmed.
Dissenting Opinion
(dissenting.)' I agree with the opinion except that portion which holds that mandamus is not the proper remedy.
Section 3006, Rev. Code 1919, provides (italics mine) :
“The writ of mandamus may be issued by the Supreme and circuit courts, 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.”
The law lays upon defendants the duty of maintaining a school. The majority opinion holds that the removal of the schoolhouse was without authority of law. It follows that it was the duty of the school board to maintain the school at the original site. Therefore it follows that the act sought to be enforced is an act which the law specially enjoins as a duty resulting from an office, trust, or station. I think the judgment of the trial court should be reversed.