Odendahl v. Russell , 86 Iowa 669 ( 1892 )

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 districtdn 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 fifteen 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 schoolhouse thereon, 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 Nineteenth 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. -: -: duty of directors: mandamus. II. The board of directors of the district township of Grant passed an order making the change in complianee with the application. Afterwards said board. without any application, and . ' v L L 7 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 of Independent District of Earlham, 73 Iowa, 134. 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 the statute, the board is compelled to act; and it can act only in one way, that is, it is its duty to order the change in the districts.

3. -: -: -: -: III. It is claimed that the plaintiffs cannot maintain the action of mandamus, because they demand in their petition that the said territory shall be restored to Grant township, and that the defendants shall erect a schoolhouse within the limits of the territory. The demand that the defendants shall erect a schoolhouse is not within the statute, and the plaintiffs had no right to an order to that effect. But it is a familiar rule of the law, that because a party may in his petition demand more relief than he is entitled to is no reason why he should not be granted such relief as he does ask, and is entitled to.

4. -: -: -: IV. The defendants further contend that the action cannot be maintained, because the plaintiffs’ remedy was by appeal from the board to the county superintendent of schools. The ready answer to this position is that there was nothing to appeal from. The defendants took no action whatever upon the application. For aught that appears, it is pending before them now. The case is not within the rule of the cases of Hightower v. Overhaulser, 65 Iowa, 347, and Barnett v. Directors, 73 Iowa, 134.

5. Mandamusappeal: reV. There are no other questions in the case which appear to us to demand consideration. The judgment will be reversed, and the cause remanded tor a new trial. The action is tor a man-damns, and is not triable anew in this court. Dove v. Independent District of Keokuk, 41 Iowa, 689. Reversed.