Heintz v. Moulton

• Decision Date: 03 August 1895
• Citation: 64 N.W. 135,7 S.D. 272
• Parties: HEINTZ v. MOULTON et al.
• Court: South Dakota Supreme Court

64 N.W. 135

7 S.D. 272

HEINTZ v. MOULTON et al.

Supreme Court of South Dakota

August 3, 1895

Syllabus by the Court.

1. In mandamus proceedings to enforce a private right, the real party in interest should be named as plaintiff, and such proceeding should not be entitled in the name of the state on the relation of such party. Howard v. City of Huron (S D.) 59 N.W. 833.

2. The chairman of the district school board is not a necessary party defendant in such proceeding, when it affirmatively appears that he has at all times held himself in readiness to perform the acts sought to be enforced by the court's mandate. Smith v. Lawrence, 49 N.W. 7, 2 S.D. 135.

3. If the law imposes upon a school board unconditionally an imperative duty which it neglects to perform, no personal demand upon the members thereof is required. The law is continually demanding, and the failure to perform constitutes a refusal.

4. Mandamus will not lie to control or dictate the action of school officers in matters officially intrusted to their judgment, or concerning which they are authorized to exercise a sound discretion.

Appeal from circuit court, Brookings county; J. O. Andrews, Judge.

Mandamus by Nicholas Heintz against Charles Moulton and John D McMillan, members of the school board. From a judgment awarding the writ, defendants appeal. Reversed.

P. C Truman and John C. Jenkins, for appellants.

Alexander & Fairlamb, for respondent.

FULLER J.

This appeal is from a judgment against school directors awarding a peremptory writ of mandamus upon the return of an alternative writ, with the requirements of which defendants had failed to comply, and by which they were required, as such officers, to purchase a certain schoolhouse site within the district, to receive bids for the removal of a certain schoolhouse thereto, and to enter into a conformable contract with the lowest bidder, in accordance with a vote of the electors previously taken at a special meeting, alleged in the affidavit to have been called pursuant to notice, and in compliance with a petition signed by seven resident voters of said district. To the alternative writ, and the affidavit upon which the same was issued, defendants in their official capacity filed a demurrer or motion to quash, upon the following grounds: "First. The plaintiff has not legal capacity to maintain this proceeding. Second. There is a defect of parties plaintiff, in this: that the state of South Dakota is not made a party plaintiff. Third. There is a defect of parties defendant, in that the district school board of school district No. 29 of Brookings county, a municipal corporation, should have been made a party defendant, and is a necessary party defendant; and in this that the chairman of said board is a necessary and proper party defendant. Fourth. That said writ does not state facts sufficient to constitute a cause of action, nor to justify the court in issuing a peremptory writ of mandamus."

Respondent's counsel have moved this court to require appellants to execute and file herein an undertaking as required in section 5219 of the Compiled Laws, and to strike from the record what has been denominated a "bill of exceptions," upon the ground that the same is immaterial, irrelevant, and contradictory of the record made in the trial court, in that no demurrer was filed therein to the alternative writ of mandamus; but, as we have concluded that the case must be reversed, an undertaking would be of no interest to respondent. As to the question whether an undertaking in this court may be dispensed with under section 5229, as amended by chapter 59, Laws 1893, where an appeal is taken, as in this instance, by the officers of a school district in a purely official capacity, no examination is required, because, if an affirmative conclusion were reached, this court would do no more than to require, in accordance with said section, an undertaking to be filed, which, under the view we have taken of the case as above intimated, would be of no service to either party. We also regard the second motion of no practical importance. This court does not look to a bill of exceptions to ascertain the nature of the pleadings, as they are part of the judgment roll; nor for the purpose of ascertaining the ruling of the court upon a demurrer. These are all matters of record without the aid of a bill of exceptions. The purported imperfections and unfairness of appellants' abstract, properly brought to our attention by respondent's additional abstract, is not sustained by the record filed in this court. It clearly appears therefrom that a demurrer to the alternative writ was interposed upon the return thereof; that after a full argument thereon the same was overruled, and appellants' exception to the ruling of the court was duly noted, and that judgment awarding a peremptory writ of mandamus...