State ex rel. Donovan v. Palmer

• Citation: 18 Neb. 644,26 N.W. 469
• Parties: STATE EX REL. DONOVAN v. PALMER AND OTHERS.
• Decision Date: 06 January 1886
• Court: Nebraska Supreme Court

18 Neb. 644

26 N.W. 469

STATE EX REL. DONOVAN

v.PALMER AND OTHERS.

Supreme Court of Nebraska.

Filed January 6, 1886.

Mandamus.

M. B. Hoxie, for plaintiff.

C. J. Phelps, for respondent.

MAXWELL, J.

This is an application for a mandamus to compel the defendants to permit the children of the relator to attend the public school in district No. 7 of Colfax county, of which the defendants are officers. The relator served notice on the defendants, as required by the rules, and the defendants appeared by attorney and contested the right of the relator to the relief sought. The relator alleges in his petition that he “is the head of a family, and is now, and was at the times hereinafter mentioned, the father of seven children of school age, to-wit, John W., 18 years old; Clarabel, 15 years old; Charlie L., 13 years old; Anna, 10 years old; Addie, 8 years old; James B., 7 years old; and Sophronia, over 5 years old,--all of said children at said times and now are living at home with the plaintiff, and under his care and custody; that plaintiff was a resident and tax-payer of school-district number nine of said Colfax county prior to September 12, 1885; that plaintiff is a farmer, and has been for several years last past, and owns the farm and lands herein mentioned; that prior to the last-mentioned date, September 12, 1885, 160 acres of his farm was in said district number seven, and part--to-wit, the south half of the north-east quarter, and the north-west quarter of the south-east quarter, of section sixteen, in township eighteen north, of range four east of the 6th principal meridian--was in said district number nine; that his residence is on the lands last described, and was situated about four rods from the imaginary line dividing said districts; that his said house was and is nearly four miles from the school-house, in said district nine; that at times in wet seasons it was and is impracticable for his said children to attend school in said district nine, there being six streams and branches of streams, subject to overflow at times, to cross in going from his house to said district school-house; that his residence was and is about two miles and a half from the school-house in said district seven, with no stream or low places to cross; that upon the proper showing made by plaintiff, W. T. Howard, the superintendent of public instruction for said Colfax county, did, on the twelfth day of September, 1885, detach the said south half of the north-east quarter, and the north-west quarter of the south-east quarter, of said section sixteen, from said district nine, and attach the same to and made it a part of said district seven; that after the said action taken by the said county superintendent the said defendants, with three other resident tax-payers of said district number seven, presented their protest to said superintendent, protesting against his action in attaching plaintiff to said district seven; that the said superintendent thereupon appointed a day, to-wit, the fifth day of October, 1885, at 1 o'clock P. M. of said day, for a hearing of all the parties interested in said matter, at which time the parties appeared in person and by counsel; that the said superintendent heard all the evidence offered by the parties, the argument of counsel, and, after visiting the residence of plaintiff and the said districts, and making personal examination, found that it was impracticable for plaintiff to send his said children to the school in...