State v. Lyons

• Citation: 96 P. 922,37 Mont. 354
• Parties: STATE ex rel. BEAN v. LYONS et al.
• Decision Date: 18 July 1908
• Court: Montana Supreme Court

96 P. 922

37 Mont. 354

STATE ex rel. BEAN v. LYONS et al.

Supreme Court of Montana

July 18, 1908

Appeal from District Court, Madison County; Lew. L. Callaway, Judge.

Mandamus by the state, on the relation of Milton Bean, against Philip Lyons and others, as trustees of school district No. 35 Madison county. From a judgment for plaintiff, defendants appeal. Affirmed.

Clark & Duncan, for appellants.

Edmund J. Callaway, for respondent.

BRANTLY C.J.

This is an appeal from a judgment directing a peremptory writ of mandamus to issue requiring the defendants, trustees of school district No. 35 of Madison county, to hold an election to determine the question of the location of the district schoolhouse. It is alleged in the affidavit, in substance that the relator is a resident and taxpayer of the district that for the past nine years the district has owned and used a schoolhouse, with the necessary furniture, fixtures, and accessories, situate near the center of the district; that during the first four of these years the land occupied by it was public land of the United States; that during the past five years it has been owned by Staudaher and Johnson, who have acquired the paramount title; that on September 24, 1907, these owners notified the defendants, as trustees, to remove the building from their land; that the defendants Lyons and Koch on or about October 26, 1907, caused to be built in a remote part of the district a new schoolhouse, and removed thereto from the old building all the furniture, fixtures, and other accessories theretofore used therein and in connection therewith, together with the doors, windows, and floors; that they have employed a teacher to conduct a school for the district in the new building; that all these acts have been done without right or authority of law and in violation of their duty, in that they failed and refused to submit the question of the location of the new school building and school to the qualified electors of the district, and neglected to first obtain authority from the electors to erect the new building, as is required by law; that the defendants could have complied with the notice of Staudaher and Johnson by moving the old building a distance not to exceed forty rods, but that, instead of so doing, they erected the new building at a distance of three and one-half miles from the old location, and at a place in the district more convenient to themselves, and at the same time more remote from a majority of the children in the district, making it necessary for them to cross an intervening river and to travel the additional distance of 3 1/2 miles; that the defendants intend to maintain the school in the new building, and to use the money belonging to the district to pay the expense of its construction; that, by the action of the defendants aforesaid, the relator and other residents in the district in like situation with himself have been and will continue to be deprived of the benefits of the school for their children, owing to their tender age, the additional distance necessary for them to travel, the danger to them in crossing the river, and the inconvenience and danger due to inclement weather; and that prior to the commencement of this action the relator demanded of the board of trustees that they submit the question of the location of the school building to the qualified electors of the district, but that the defendants Lyons and Koch, trustees as aforesaid, refused and still refuse to do so, though defendant Jones is willing to grant the request. To the alternative writ the defendant Jones made no appearance or answer. Defendants Lyons and Koch made defense, first, by motion to quash on the ground that the facts stated do not warrant any relief; and, then, upon a denial of this motion, by answer to the merits. Their answer is somewhat voluminous, consisting of denials of many of the material averments made by the relator, and of matters alleged affirmatively in justification of their action. Among these latter it is alleged that school district No. 35 never owned a site for its school building; that at the time Staudaher and Johnson notified the trustees to remove the building it had no money value apart from the doors, windows, and floors, which were removed and put into the new building, except while located on its original site, and was not worth moving and rebuilding; that, upon receipt of notice from Staudaher and Johnson, the defendants negotiated with Margaret M. Koch, the clerk of the board of trustees and the wife of defendant Koch, for a place in which to have the school conducted for the ensuing year; that she thereupon began the construction of the new building at her own expense, at a point in the district near the center of population; that, upon the completion thereof, she delivered the same to the defendants to be used without expense to the district until a proper site could be secured and a suitable building could be erected; that, in order to have school in the district for the year, it was necessary to secure a building, and, to meet the urgent necessity thus brought upon them, they secured the building from Mrs. Koch, and thereupon employed a teacher to conduct school therein; that the district is not financially able to pay for the building of a schoolhouse, and for this reason no action has been taken by the defendants to secure a site therefor; and that they permitted the use of the doors, windows, and floors of the old building in the new one only temporarily until a suitable site could be secured.

A trial of the issues resulted in findings in favor of the relator upon all the allegations made in the affidavit. The court further found that at a meeting of the board of trustees on September 27, 1907, by a majority vote, Lyons and Koch voting in the affirmative, it was determined to remove the school to the location where it now is, the site selected being designated as the "new site"; that these defendants thereupon directed Mrs. Koch to advertise for bids for the erection of a new building; that, having received no bids they made arrangements with her by which she advanced the funds required to erect the building; that thereafter defendant Koch and a brother of Mrs. Koch erected the building, taking from the old building the floor, part of the roof, the windows and doors, and incorporated them in the new building; that there had been a contention in the district during the two years prior to this action as to whether the schoolhouse should be removed to the new location, the same site selected by defendants; that it had originally been located on the old site by a vote of the district, and that the question of removal to the new site had been twice theretofore submitted to the voters (the last time in May, 1907), who had refused to consent to a...