Hightower v. Overhaulser

Seevers, J. The trial judge has certified that this ease involves the determination of two questions of law upon which it is desirable to, have the opinion of this court. In [349] effect, these questions are: (1) whether, upon the facts as they are alleged in the petition and admitted in the answer, the action of mandamus will lie to compel the board of the district township to act on the petition of the plaintiff, and the request of the board of the independent district, that it concur in the action of the latter board with reference to the proposed change in the boundaries between the two districts; and (2) whether the action of the district township in 1882, in denying plaintiff’s petition, and refusing to concur in the action of the board of the independent district with reference to said proposed change, bars and estops plaintiff from maintaining the action of mandamus., he having failed to appeal to the county superintendent from the order then made, there being no change in the meantime in the location of the schoolhouses in the district township. The first question we shall consider is whether, under the facts above stated, the defendants can by mandamus be compelled to act upon the request made. 1. SCHOOLmsTEicK; nmiítomusto xoratoact'on" petition for. I. It is provided by statute that “ the action of mandamus is one brought in a court of competent jurisdiction, to obtain an order of such court commanding an inferior . ° tribunal, board, corporation, or person to do or not to an act’ ^ performance of which the law enjoins as a duty resulting from an office, station, or trust. The order of mandamus is granted on the petition of any private party aggrieved.” Code, § § 3373, 3377. It is further provided by statute that “the boundaries between a district township and an independent district may be changed at any time with the concurrence of their respective boards of directors.” Code, § 1809. Counsel for the appellants insist that no duty is enjoined on the defendants by the section of the Code last quoted. But the board of directors of a district township are vested with jurisdiction, and the right to concur in or agree to a change of the boundaries of the district; and from any decision of the board in relation thereto an appeal may [350] be taken to the county superintendent. Code, § 1829. Any person desiring a change in the boundaries of a school-district must apply in the first instance to the board of directors of the respective districts. If they, or one of them, refuse to make the change, the person aggrieved thereby may appeal, and thus obtain rights denied him by the board. If, however, the board simply declines to act, then no appeal can be taken, and the party is remediless, unless mandamus will lie. The fact that the requisite power and jurisdiction are conferred on the board to decide the question when presented, and from their decision an appeal will lie, implies that a duty is enjoined on the board in respect thereto. It is true that, the board cannot be compelled to act in any particular manner. They have a discretion in the premises which, it may be conceded, cannot be controlled by the courts; but whatever determination the board may make can be set aside or affirmed on appeal. All the courts can do is to compel the board to act, to the end that an appeal will lie. In principle, the case is like Albin v. Board of Directors, 58 Iowa, 77; the only essential difference being that in the cited case it was held that the board had no discretion whatever, while in the present case the only relief asked is that the board shall exercise the discretion vested in it as provided by the statute. pSTfacte^ot constituting, II. The second question to be determined is whether the plaintiff was estopped by his failure to appeal from the refusal of the board to make the change in the boundaries of the district upon his petition the preceding year. It is said that no change in the condition of the district was shown; that the prior action of the board amounts to an adjudication which is final and conclusive. Whatever may be the general rulé on this subject in the courts, we feel clear that it should not be applied to school boards. Our school system is not based on any such rigid rules. It is true, the plaintiff acquiesced in the prior decision, but this did not prevent him from asking the board, at the proper time, to examine the matter again, and at least [351] act on the matter of the petition. The individuals composing school boards may be yearly changed, and their duties are largely legislative instead of judicial; and we do not think they should be estopped by any prior action taken by them, unless, possibly, private rights would be thereby injuriously affected. Affirmed.