Odendahl v. Russell

• Decision Date: 25 October 1892
• Citation: 53 N.W. 336,86 Iowa 669
• Parties: ODENDAHL ET AL. v. RUSSELL ET AL.
• Court: Iowa Supreme Court

86 Iowa 669

53 N.W. 336

ODENDAHL ET AL.

v.RUSSELL ET AL.

Supreme Court of Iowa.

Oct. 25, 1892.

Appeal from district court, Carroll county; J. H. MACOMBER, Judge.

The plaintiffs are residents of Grant township, in Carroll county. The particular place of their residence is on section 18, and the N. 1/2 of the N. W. 1/4 of sections 19 and 30, in said township. The said territory is attached to the independent school district of Carroll for school purposes. The plaintiffs presented a petition to the board of directors of said independent district to pass an order restoring said territory to the district township of Grant. The defendants constitute the said board of directors, and it appears they failed and neglected to take action on said petition. This is an action of mandamus, and its object is to compel the defendants to make the order restoring the said territory to the civil township to which it belongs. There was a trial by the court, and a judgment for the defendants. Plaintiffs appeal.

Robinson, C. J., and Granger, J., dissenting.

F. M. Powers, for appellants.

Theodore G. Paine, for appellees.

ROTHROCK, J.

The proceedings in question are founded upon section 1798 of Miller's Code, which is as follows: “In all cases where territory has been or may be set into an adjoining county or township, or attached to any independent school district in any adjoining county or township, for school purposes, such territory may be restored by the concurrence of the respective boards of directors; but, on the written application of two thirds of the electors residing upon the territory within such township or independent district in which the schoolhouse is not situated, the said boards shall restore the territory to the district to which it geographically belongs: provided, however, that no such restoration shall be made unless there are fifteen or more pupils between the ages of five and twenty-one years actually residing upon said territory sought to be restored, and not until there has been a suitable schoolhouse erected and completed within the limits of said territory, suitable for school purposes.” The plaintiffs, by their petition to the respective boards of directors, showed that they constituted two thirds of the electors residing on the territory sought to be restored, and that there were 15 pupils residing upon said territory. The petition and showing appear to have been in compliance with the statute, except that it is not shown that there “has been a suitable schoolhouse erected and completed within the limits of said territory, suitable for school purposes.” It appears from the evidence in the case that there is no schoolhouse within the limits of the territory sought to be detached. It is not disputed, however, that there are schoolhouses in the district township of Grant. We think that, although by a literal reading of the proviso of the statute there can be no restoration until after a schoolhouse has been provided in the territory sought to be restored, yet, when the whole section is considered, together with the object and purpose of the statute, it is only where there is no schoolhouse in the district to which the disputed territory geographically belongs that the proceeding is not authorized. The application is required to be made by the electors “residing upon the territory in which the schoolhouse is not situated.” Besides, the statute authorizing the formation of school districts from the territory of two or more townships was made necessary years ago by the sparsely-settled condition of the civil townships, and for the very reason that it was necessary to attach additional territory to afford school facilities to the settler. Now, if there can be no restoration of the territory until after the erection of a schoolhousethereon, the law can in most cases be defeated by the district to which the territory is annexed refusing to build a schoolhouse on said territory. Doubtless the incongruity in this statute occurred by reason of the manner of its enactment. The proviso is an amendment added to the law by chapter 160 of the Acts of the 19th General Assembly. If the author of that amendment had given a little attention to the law as it was without amendment, he would have discovered that the proviso and the law were in plain contradiction, if it was intended by the amendment that there must be a schoolhouse erected in the territory to be restored to its proper district township before the restoration is made. We cannot think it was intended to entirely nullify the law as it was before the amendment. If such had been the purpose, the law would have been repealed. It was not repealed, but the amendment was merely added to it.

2. The board of directors of the district township of Grant passed an order making the change in compliance with the application. Afterwards said board, without any application, and on its own motion, rescinded the order. It is claimed that this was sufficient ground for the refusal of the defendants to act on the petition of plaintiffs. The statute provides that the restoration shall be made “by the concurrence of the respective boards.” This does not mean that the boards shall hold a joint meeting for the purpose of acting on the application. It means that each shall concur in the act of the other. It was no concern of the defendants what the action of the board of Grant township district was. The statute is peremptory. When an application is made in compliance with the law, the board where it is presented is required to pass the order making the change. Barnett v. Directors, 73 Iowa, 134, 34 N. W. Rep. 780. The fact that the board of the other district has rescinded its action or refused to act does not release the defendants from making an order which the law plainly commands shall be made; and this is not a case where mandamus can only be invoked to compel the board to use its discretion in the matter of making the order demanded. As we have seen, if the application is within ...