Molacek v. White

• Decision Date: 12 March 1912
• Docket Number: Case Number: 2721
• Citation: 31 Okla. 693,122 P. 523,1912 OK 205
• Parties: MOLACEK et al. v. WHITE et al.
• Court: Oklahoma Supreme Court

1912 OK 205

122 P. 523

31 Okla. 693

MOLACEK et al. v. WHITE et al.

Case Number: 2721

Supreme Court of Oklahoma

Decided: March 12, 1912

Syllabus

¶0 1. MUNICIPAL CORPORATIONS--Departments--Board of Education. Under section 8016, Comp. Laws 1909, the board of education in cities of the first class is vested with the authority to establish a high school whenever, in its opinion, the educational interests of the city demand it, and to exercise the sole control over schools and school property of the city; and it cannot abdicate the power and authority so vested to the electors of the district, and the courts are without jurisdiction or authority to assume it.

2. INJUNCTION--Mandamus--Subjects of Relief--Acts of Officers--Board of Education. Plaintiffs, in their petition for a writ of mandamus against a school board, pleaded that, prior to an election, duly called, for the purpose of voting bonds for the erection of a high school, the board of education met in special session and passed a resolution which provided for the location of the proposed building upon a certain designated lot; that the said bonds would not have been voted by the electors of the said district if such resolution had not been passed; that after the election in which the bonds were voted, and after they had been disposed of, the board procured a different site, and was proceeding to erect the building thereon. The prayer was for injunction and mandamus, both of which, over demurrer of defendants, were allowed. Held, error.

3. MANDAMUS--Nature of Remedy--Acts of Officers--Discretionary Acts. When a discretion is vested in a public officer, the courts will by mandamus compel him to exercise that discretion, but will not direct how it shall be done, or what conclusions or judgment shall be reached.

Error from District Court, Murray County; Albert Rennie, Special Judge.

Action in mandamus by J. B. White and others against T. E. Molacek and others as the Board of Education of the City of Sulphur. Judgment for plaintiffs, and defendants bring error. Reversed and remanded, with instructions to dismiss petition.

J. F. Sharp, George M. Nicholson, and Devereux & Hildreth, for plaintiffs in error.

John H. Casteel and C. N. Allen, for defendants in error.

DUNN, J.

¶1 This case presents error from the district court of Murray county, and is an action in mandamus, brought by the defendants in error, as plaintiffs, who allege that they are electors and resident citizens, taxpayers, and property owners, having children of school age and living within the city of Sulphur, and that the defendants, who appear in this court as plaintiffs in error, constitute the board of education in and for the said city. The purpose of the action is to secure a writ of mandamus, commanding defendants to acquire title to a certain block of land in the city of Sulphur and to erect thereon a high school building, using therefor the sum of $ 29,000 held by said board as the proceeds of certain bonds voted at an election held in the said city for that purpose. Pending the hearing and determination of this case, the court granted a restraining order or injunction to hold the matter in statu quo, and to prevent the board from using said fund in such a manner as to preclude it from carrying out any order or judgment which might be made in the main action.

¶2 The facts out of which the controversy arose are stated in plaintiffs' second amended petition, and are, in effect, that on March 2, 1909, the said board of education initiated a proposition to erect within the city of Sulphur a high school; that pursuant thereto an election was called by the said board for the issuance of $ 60,000 in bonds; that the electors by their votes rejected the proposition; that thereafter the said board, on or about the 11th day of May, 1909, initiated a second proposition and submitted to the electors of the city the question of voting $ 54,000 in bonds for several different purposes, among others for the purpose of purchasing a site and erecting a high school building; that during the canvass in this election it became apparent that the proposition thus submitted would likewise be rejected, and the said board, being made acquainted with this sentiment, and being informed and believing that, unless a definite site for the high school should be selected which would meet with the approval of a sufficient number of the qualified electors, the proposition submitted would again fail, thereupon, and prior to the day of the election, met in called session, at which there was offered and adopted a resolution providing that the high school would be located on block 36 of the city of Sulphur, on a plat of ground known as the Howerton block, and that the sum of $ 29,000, provided for in the bond election which was to be held the next day, should be spent on the said block, or so much thereof as the board might decide necessary; that by reason of said resolution, and persuaded by its terms, a sufficient number of the qualified electors of the said city voted in favor of the said bonds. The petition then averred that the said board of education had taken no steps whatsoever looking toward carrying out the trust imposed upon it, and had failed and refused to purchase the site, and wholly failed and refused to erect thereon a high school building; but that after the filing of the original petition in this case certain members of the said board became active in seeking to thwart the will of the people in said city, and selected, in lieu of block 36 of the Howerton site, a certain other tract, known as the Bonneau lot, for the location of the said building, and that the said board claims to have purchased the said Bonneau lot, and to have caused plans and specifications prepared for a school building to be located thereon, and is proceeding with the intention of appropriating and using the $ 29,000, derived as aforesaid, in the erection of a high school building on said lot. The petition also contains a number of averments showing the greater desirability of the Howerton tract and the inadequacy of the Bonneau lot for the said building, and ends with a prayer for an injunction to restrain other action and a writ of mandamus, commanding the board to acquire title to the Howerton block, and to immediately erect thereon a suitable high school building with the funds provided therefor.

¶3 To this petition, the defendants demurred on a number of grounds, which demurrer was overruled by Judge R. McMillan. A trial was had before Special Judge Albert Rennie, Esq., resulting in a judgment for plaintiffs, in which the said board was ordered to proceed at once to erect on the said Howerton block a suitable high school building, and to spend in the purchase thereof the sum of $ 29,000, and perpetually enjoining said board from appropriating said fund, or any part thereof, for any other purpose, except as therein provided. After the filing and denial of a motion for new trial, the cause has been lodged in this court for review.

¶4 As will be seen from the statement, the question presented to us is: May a board of education, charged, by virtue of its public office, with the duty and discretion of locating a public high school building, make an enforceable contract or pledge to the electors of the municipality, independent of the ballots, that if they will vote bonds to construct the same it will, as a consideration therefor, erect it upon any particular tract of ground, and after having made the pledge, and the electors relying thereon have voted the bonds proposed, is the board, in the exercise of its discretion, by reason of the resolution, contract, or pledge which it made, precluded from then erecting the building upon another and a different site than the one previously selected? Counsel for both parties agree that this is the controlling question in the case.

¶5 Section 8016, Comp. Laws 1909, provides:

"The board of education shall have power to elect their own officers, except the treasurer, to make their own rules and regulations, subject to the provisions of this article; to organize and maintain a system of graded schools; to establish a high school whenever, in their opinion, the educational interests of the city demand the same; and to exercise the sole control over the schools and school property of the city."

¶6 McQuillan on Municipal Corporations (volume 1, sec. 382, p. 842) says:

"Contracts and ordinances relating to any municipal function which embarrass in any way the power of regulation of public affairs are ultra vires; for the municipal corporation cannot in any manner divest itself of its power to control and regulate at all times everything within the domain of its jurisdiction. The adjudications present numerous instances of ordinances and contracts in derogation of the police powers which are uniformly declared void under this principle. Such powers belong emphatically to that class of objects which demand the application of the maxim, 'Salus populi suprema est lex'; and they are to be attained and provided for by such appropriate means as the discretion of those who officially represent and act for the municipal corporation may devise from time to time. The discretion can no more be bargained away than the power itself."

¶7 In addition to the authorities which the author cites in support of the text, we note the following: State ex rel. Howell County v. Justices of Howell County Court, 58 Mo. 583; Colburn v. Board of Comm'rs of El Paso County et al., 15 Colo. App. 90, 61 P. 241; Edwards v. City of Goldsboro, 141 N.C. 60, 53 S.E. 652, 4 L. R. A. (N. S.) 589, 8 Ann. Cas. 479...