The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-03-28
IT IS THE PEOPLES WILL
Tho Supreme Court Upholds School
Trustees Action In Madi-
son County.
A Legal Technicality Thrust
Aside In Favor Of tho
Taxpayers.
An Application for \ Writ OF Habeas
Corpus Made in tho
Dyers Case.

Tho supreme court yesterday In an opin-
ion written by Associate Justics Dewitt
and CONQUERED in by Chief Justice Pember-
ton, has sustained the will Of the people in
q school district controversy in Madison
county, where the question WAS pending In
tho district court before its submission to
tho voters. Tn Judge while tho case was
In his court made nh order calling for q
special election. and when tho result APP
peared before him SO ruled that the will of
tho people was defeated. The supreme
court reyefses his decision. The cnse is
that Of the state on the ~relntioa OF O. w.
Jay va. Ira M. Marshall OF al, trustees OF
school district No. 23. Madison county. The
appeal was from q judgment of the district
court in special proceeding in
which the relief granted was a
peremptory writ of mandamus. The ro-
lator Is a resident and taxpayer OF the dis
trict. He sets up that there il u regularly
built and established school house and
that tho trustees unlawfully moved the
school properties and equipment to a house
In another and remote part OF the district
and ordered the teacher TO 90 there and
hold school; that they are maintaining and
will contine to maintain the school at said
other place. The relator asked for the writ
OF mandamus to require the trustees to re-.
store the school to the old school house.
The answer of respondents 10 o worry volum-
inous document and sets mp in great detail
the alleged worthless and dangerous char
acter of the old school house and the moon
venience of its location for the people Of
the district. II admits the moving of the
school to the new place and describes the
c%onvenienoe and suitability of the new
school house and site. It alleges that for
three years prior to the application for the
writ of mandamus the school had been
maintained at the new place and 90 main
tanned with the acquiescence of the people
of the district.
The answer admits that the now school
house has been erected and used for a
sohoo! without there being submitted to
the qualified electors of the district the
question of the removal of the school. The
mission is as follows:
every board of trustees 4 \ shall
have power. and IL shall be their duty \ \
sixth. to build or remove school houses
and to purchase or sell school lots. when
the trustees may be directed by n vote of
the district so to do (%section 1885, fifth d.
vision, Compiled Statutes of Montana)."
! The relutor demurred to the answer, the
point being that the moving of the school
BY the trustees was without authority, be-
cause they had not submitted the question
/ to the electors a. provided in section l, 1886,
and that, cs the trustees did not show by
their answer that they had the vote of the
district upon the question, they, therefore,
did not show any reason why they should
! NOT ha FanniraI nv r0nn1aporo IN rocSrre
the school to tho old site and house there
tofore established.
Tn hearing below was continued and the
judge ordered an election for approval OF
the trustees action. The election showed
a majority OF votes in favor OF the trustees
action. An amended answer was then filed
setting this fact mp. The Ielator demurred
and moved to strike out this matter in re-
gard to the result of the election, The
court sustained the demurrer. In q short
opinion the judge ruled apparently that
Notwithstanding such election it constituted
be issued. From this Judgment the appeal
was taken. The supreme court says that
the court below had better have RETAINED
from interference; that the fact that the
school had been allowed to remain in its
present location for three years without any
complaint from the taxpay ers clearly showed
their desires in the premises.
Associate Justice HARDWOOD, in q concur
ring opinion, holds that tho real question
for determination Ia whether the supple
mental answer of appellants sets forth suf-
tcient facts to constitute a defense to this
proceeding for mandamus to compel said
trustees to remove the school from its pres
ent location back TO the house formerly
occupied, and this was decided by a vote Of
the people in favor ct retaining the school
as relocated, and says that in view of these
facts the school should remain as relocated;
he does not zee why it should be carried
back to its old location simply because of
an irreRularity on the part Of the trustees.