I dissent. The original petition in the district court for writs of prohibition and mandamus against the school board set out two causes of action: (1) That the Board of Education of Emery County School District had no power or authority to discontinue and abandon the school located at Elmo, Utah; and (2) that even though said school board had such authority to discontinue said school, nevertheless in so doing it was acting arbitrarily and in abuse of its authority.
General demurrers to the above causes of action were overruled, whereupon the school board filed an answer to the petition and each cause of action set out therein. Said answer alleged facts and conditions justifying their proposed action of discontinuing the Elmo school and transporting the school children to Cleveland — some four miles from Elmo — to attend schools there.
A general demurrer to the answer to each cause of action was sustained, and upon refusal of the defendants to plead further, judgment was rendered against them directing that *Page 27 a peremptory writ of mandamus issue directing the school board to continue the Elmo school and take such steps as would be necessary to insure its proper maintenance.
This appeal raises first the issue of whether the school board has any statutory authority to abandon or discontinue any school and provide in lieu thereof educational facilities elsewhere. The court's opinion reaches the conclusion that the board had no such power. It is conceded that unless such authority is expressly or by implication granted by statute none such exists. In Beard v.Board of Education of North Summit School District, 81 Utah 51,16 P.2d 900, 903, we said:
"The powers of the board of education are statutory since the Legislature may authorize the governing authorities of school districts as the state's agents to do anything not prohibited by the Constitution. Young v. Board of Trustees, supra [90 Mont. 576,4 P.2d 725]. The board of education, being a creation of the Legislature, has only such powers as are expressly confered upon it and such implied powers as are necessary to execute and carry into effect its express powers. Royse Independent SchoolDistrict v. Reinhardt (Tex.Civ.App.) 159 S.W. 1010. The court is not concerned with the policy, expediency, wisdom, or justice of a legislative enactment conferring powers on boards of education of school district, and where such authorities act within their powers, in the absence of a clear abuse, the courts will sustain the exercise of such power. Young v. Board ofTrustees, supra."
In harmony with the last part of the above quotation, if it be determined that a school board does have authority to abandon or discontinue a school, its action in so doing will not be interfered with unless there is a "clear abuse" of discretion. In the present case, if it be resolved that the defendant school board has authority under the statute to discontinue a school, the cause should be remanded with instructions to proceed to determine under the issues raised whether in exercising such authority it has abused its discretion.
County school districts of the first class, to which category appellant school board belongs, were first created by *Page 28 statute in 1905 (see Laws of Utah 1905, Chapter 107). At that time there were already in existence school districts and school districts of cities of the first and second class (see Constitution of Utah, Article 10, Sections 1 and 6; Laws of Utah, 1896, Chap. CXXX, Articles IV, VI, XV; Laws of Utah 1897, Chapter XLIX, Chapters 4, 6, and 13). Prior to the time Utah became a state there were in existence what were termed "school districts" or "district Schools" (see Comp. Laws of Utah 1876, Chapter II; Revised Statutes of Utah 1888, vol. 2, Chapter VI).
But it was with the adoption of the State Constitution and act of the legislature in 1896 that provision was made for two different types of school districts, namly: common school districts and school districts of cities of the first and second class (see Constitution and statutes above referred to). The powers of the trustees of the school districts and those of boards of education of the city school districts were separately set out. As contained in Revised Statutes of Utah 1898, Title 55, Chapter 6, the powers of the trustees of a common school district were specifically enumerated. For instance: Sec. 1815. Power of "general control" of property and to levy "annual and special tax;" Section 1816, "To maintain, locate, or discontinue schools;" Sec. 1817, "To make repairs, furnish supplies"; Section 1818, `To furnish text books, furniture"; Section 1819, "To employ teachers" and dismiss the same; and so on until all its powers are set forth.
With respect to boards of education of school districts in cities of the first and second class, however, the legislature set forth their powers in more general terms. Section 1913, Chap. 15, Title 55, Revised Statutes of Utah 1898, provided:
"The board of education shall have power and authority to purchase or sell schoolhouse sites and improvements thereon; to construct and erect school buildings and furnish the same; to establish, locate, and maintain kindergarten schools, common schools consisting of primary and grammar grades, high schools, and industrial or manual training schools; to establish and support school libraries; to purchase, exchange, repair, and improve the high school apparatus, books, *Page 29 furniture, fixtures, and all other school supplies, in said schools; to supply and loan to pupils in the several grades and departments of said schools, free of charge, all text books and supplies used by the pupils of said schools; to sell to pupils in the several grades and departments of said schools, at cost, all text books and supplies used by the pupils of said schools; * * * to do all things needful for the maintenance, prosperity, and success of the schools, and the promotion of education; to adopt by-laws and rules for the procedure of the board of education, and make and enforce all needful rules and regulations for the control and management of the public schools of the city."
Then, as heretofore stated, the legislature in 1905 made provision for the creation of what was called "county school districts of the first class" (see Laws of Utah 1905, Chapter 107). These school districts were to be created in counties where the school population of the "district schools" in such county was in excess of 3,000. The act provided that "said county school district of the first class is hereby placed upon the same basis as school districts in cities of the second class under the laws of this State, except as herein otherwise provided."
The powers of the boards of education of the newly created school districts and those quoted above governing school districts in cities of the first and second class were practically identical. They are enumerated in Sec. 21, Chap. 107, Laws of Utah 1905 (quoted in the court's opinion).
The powers so conferred on trustees of school districts and those conferred on boards of education in county school districts of the first class and school districts in cities of the first and second class continued in the statutes until 1915 (see Title 66, Chap. 6, Sec. 1816; Chap. 16, Sec. 1891x20; and Chap. 17, Sec. 1913, Comp. Laws of Utah 1907). At that time the legislature passed an act which repealed all statutory provisions relative to trustees of school districts and to the school districts of which said trustees had charge, and so amended the school law as to make every county a county school district of the first class, except where such districts of the first class were already in existence *Page 30 within a county. As to these, they remained as they were and the remaining portion, if any, of the county became an additional school district of the first class (see Chapter 78, Laws of Utah 1915). The effect of the repealing provisions of the chapter was to do away with the system or type of school administration theretofore existing throughout that portion of the state not theretofore included in county school districts of the first class or in cities of the first and second class. The other provisions thereof made applicable to the entire state outside of cities of the classes mentioned the school law relative to county school districts of the first class.
It was thus that Section 1816, Comp. Laws of Utah 1907, granting specifically to trustees of school districts the power to discontinue schools was taken off the statute books (as were all other provisions relating to such districts), since such school districts were no longer in existence. But at the same time nothing was done to affect the powers of boards of education in county school districts of the first class and school districts in cities of the first and second class. The powers governing these boards remained the same in so far as the question before us is concerned. Subsequently, the term "county school district of the first class" was changed to read "county school district"; and the laws governing such school districts were merged with the laws governing school districts in cities of the first and second class. The statute enumerating the powers of the boards of education of such districts now appears as Sec. 75-11-20, R.S.U. 1933.
From the foregoing discussion of the background of the statute it seems clear that the problem, confronting this court is whether the statute, hereinbefore set out, originally conferring powers on boards of education of school districts in cities of the first and second class grants the power to discontinue or abandon any school within such district — since the same statutory provision was subsequently made applicable to county school districts of the first class, now *Page 31 termed county school districts. In this view of the matter it becomes immaterial that the legislature abolished common school districts and repealed the provision expressly granting trustees of such districts the power to discontinue schools. Such provision never was applicable to the type of school district here concerned. If appellant school board has the power to discontinue the school at Elmo, it does so because the statute, originally passed in 1896 with reference to school districts in cities of the first and second class, and as later (in 1905) applied to county school districts of the first class, granted to the boards of education of such districts the power to discontinue schools within such districts.
That the statute did confer the power on school boards to discontinue schools within their respective districts is, I think, clear. As hereinabove stated, the law is somewhat general in its terms. But it does specifically provide that the board of education shall have "power and authority" to purchase and sell schoolhouse sites and improvements thereon;" "to establish and maintain" schools and libraries; and "to do all things needful for the maintenance, prosperity and success of the schools, andthe promotion of education." (Italics added.) This last quoted power was never conferred on trustees of school districts. Instead, their powers were, as stated, more specifically enumerated and included the express power to discontinue schools. I see no basis in reason why the legislature should confer the power to discontinue schools on trustees of a school district and not on the board of education of a city school district. Nor do I see why the language "do all things needful for the maintenance, prosperity and success of the schools, and the promotion of education" does not include the power to discontinue a school where to do so would further the cause of education or the prosperity and success of the schools. In my opinion, the statute in question vests broader powers in school boards of cities and county school districts of the first class than the expressly enumerated powers conferred on the now abolished trustees of school districts. *Page 32
If there exists no power in a board of education of a county school district to discontinue a school, then neither is such power vested in the board of a city school. Each school district is a unit, just as each city of the first and second class is a unit. If the power to "do all things needful for the maintenance, prosperity and success of the schools, and the promotion of education" does not include the discontinuance of a school at Elmo, while providing an adequate school and school facilities a few miles away, then neither may the board of a city school district discontinue a school in one part of the city and offer in lieu thereof better facilities a few blocks away.
It is unreasonable to suppose that the legislature would grant to the old trustees of school districts the power — specifically given — to discontinue schools, though the discontinuance of such school might require miles of travel over very poor roads; and yet withhold from city school boards the power to discontinue a school while providing another some city blocks away.
To me it seems clear that the reason no specific grant of authority to discontinue a school was given to city boards of education was that such authority was contained in the comprehensive grant of power referred to heretofore. In each school district — whether city, district, or county district of the first class — the governing board had the power, under the provisions of the statute applicable thereto, to establish and maintain a school anywhere within such district if circumstances justified doing so. Likewise, where within such district the school population or other circumstances became such that to continue to maintain a school there would be against the best interest of education in that district, and it was possible to provide adequate educational opportunities elsewhere within said district and accessible to those going to the school it was proposed to discontinue, it was within the powers granted to either school board or trustees to discontinue such school.
The lower court, therefore, improperly sustained the general demurrers to the answers of appellants. The cause *Page 33 should be remanded with directions to proceed to determine the issue of whether under the evidence the school board is acting arbitrarily or capriciously in abuse of its discretion in discontinuing the school at Elmo, Utah.