State ex rel. Johnson v. Mostad

• Decision Date: 01 June 1916
• Citation: 158 N.W. 349,34 N.D. 330
• Parties: STATE ex rel. JOHNSON v. MOSTAD et al., School directors.
• Court: North Dakota Supreme Court

34 N.D. 330

158 N.W. 349

STATE ex rel.JOHNSON

v.MOSTAD et al., School directors.

Supreme Court of North Dakota.

June 1, 1916.

Syllabus by the Court.

In construing section 1188 of the Compiled Laws of 1913, which provides that the school boards of the various common school districts shall, upon the petition of those charged with the support and having the care and custody of nine or more children of school age, furnish school accommodations for such children within a distance of 2 1/2 miles of their homes, such 2 1/2-mile distance is to be measured by the roads which are actually opened and passable, and not as the crow flies, or by taking into consideration section lines which are set apart by section 1920 as highways, but which are not in their present condition passable and have not been actually opened for travel.

Although, under the provisions of section 1179 of the Compiled Laws of 1913, a school board of one district may allow the children of an adjacent one to attend its school, such board cannot be compelled to do so, and it is no defense to an action, which is brought under the provisions of section 1188 of the Compiled Laws of 1913 to compel the furnishing of an additional schoolhouse for the accommodation of children who are more than 2 1/2 miles from the nearest school in a district, that said children live within a distance of 2 1/2 miles of a school which is in an adjacent one.

It is no defense to an action, which is brought under the provisions of section 1188 of the Compiled Laws of 1913 to compel the furnishing of an additional schoolhouse for the accommodation of children who are now more than 2 1/2 miles from the nearest school, that on account of the broken nature of the country no site can be chosen which will be within 2 1/2 miles of the residences of all of the petitioners, provided that a site can be chosen which will be within that distance of the homes of at least nine children of school age and who are now outside of that limit from any school within the district.

Appeal from District Court, Ward County; Leighton, Judge.

Special proceeding under Comp. Laws 1913, § 1188, by the State, on the relation of J. C. Johnson, against Thorwald Mostad and others, as Directors of School District No. 10, in and for Ward County, to compel the erection of a school to accommodate children now distant more than 2 1/2 miles from any school in the district. From a judgment for plaintiffs, defendants appeal. Affirmed.Halvor L. Halvorson, of Minot, for appellants. W. H. Sibbald, of Minot, for respondent.

BRUCE, J.

This is a special proceeding to compel the directors of school district No. 10 of Ward county to furnish a school to accommodate 22 children of school age living in sections 5, 6, and 7 in said district, and is brought under the provisions of section 1188 of the Compiled Laws of 1913.

Section 1188 provides that:

“If a petition signed by the persons charged with the support and having the custody and care of nine or more children of school age, all of whom reside not less than two and one-half miles from the nearest school, is presented to the board, asking for the organization of a school for such children, the board shall organize such school and employ a teacher therefor, if a suitable room for such school can be leased or rented at some proper location not more than two and one-half miles distant from the residence of any one of such children, and if no suitable room for such school can be leased or rented, the board shall call a meeting of the voters of the district for the selection and purchase or erection of a schoolhouse, as provided for in section 1185. If at such meeting no such site is selected or if it is not voted to erect or purchase a schoolhouse for such school, the board shall select and purchase a schoolhouse site and erect, purchase or move thereon a schoolhouse at a cost of not more than twelve hundred dollars for such schoolhouse and furniture therefor; provided, that the provisions of this section shall not apply in instances where schools have been consolidated in accordance with the provisions of section 1190.”

It would appear from the record that the petition required by the above section was filed; that an election was held and a vote taken on the question of the removal or erection of a school as provided for in section 1185 of the Compiled Laws of 1913; and that at said election 43 votes were cast against the erection of a new schoolhouse and 9 votes in favor of it; that thereafter an election was held for the removal of the schoolhouse; and that only 11 votes were case for its removal. It also appears from the record that, after submitting these questions to a vote of the people, the directors of school district No. 10 refused on their own authority, and on the authority granted by section...