Hale v. Risley

Per Curiam. Mandamus is a discretionary writ, and will be allowed only in furtherance of justice upon a proper case presented. It will not be allowed where it is apparent that it is applied for to gratify the spite of a private individual, nor where the relator has instigated, authorized, or approved of the act complained of. The relator in this case was the moderator of the school-district, and presided at a school-district meeting where the act was authorized for which he now asks a mandamus to compel suit upon the assessor’s bond because such act, as he599 alleges, was.unlawful. It does not appear by his petition, or from the return, that he entered any protest or objection, but declared the resolution carried. We are not prepared to say that the payment of the schoolteacher, under the circumstances, was unlawful. The liability of a school-district to pay a teacher for services actually rendered has been maintained by the following authorities: School-dist. v. Brown, 55 Vt. 61; School-dist. v. Estes, 13 Neb. 52 (13 N. W. Rep. 16); Stockdale v. School-dist., 47 Mich. 226 (10 N. W. Rep. 349); Crane v. School-dist., 61 Id. 299 (28 N. W. Rep. 105). The general policy of the school law is that schools shall be taught by qualified teachers, but necessities may arise where this cannot be done. A district may. be unable to find a qualified teacher. Where the employment of an unqualified teacher is a necessity, the school-district is authorized to-employ one who has not the proper certificate, if the school board are satisfied that the teacher is otherwise qualified, and to pay such teacher out of moneys.belonging to the district.. But the primary-school moneys and mill tax cannot be applied to that purpose. We think the return shows such a case of necessity, and the mandamus is denied, with costs.