(concurring). — The real question for determination in this case is whether the supplemental answer of appellants sets forth facts sufficient to constitute a defense to this proceeding for mandamus to compel said trustees to remove the school from its present location back to the schoolhouse formerly occupied; for, if the facts alleged in the supplemental answer constitute a defense, the demurrer thereto admits the truth of those allegations, leaving simply a question of law for determination (section 575, Code Civ. Proc.), and judgment should be entered accordingly. The first change of place of the schoolhouse for said school ■district, without submission of that question to the electors- of the district, as provided in the sixth subdivision, •section 1885, of the fifth division of the Compiled Statutes, was irregular, and appears to have been so regarded by the *142trial court. But that removal occurred about three years before the commencement of this proceeding, and I gravely doubt that, after such removal and establishment of said school at the latter place had been acquiesced in for such a period of time, a mandamus proceeding should have been entertained to compel the present board of trustees to again remove said school back to the former site, or elsewhere, without first submitting to the electors of said district the question of such removal, as provided in the section of the statute cited supra.
Under such a state of facts, I doubt that it could be maintained that the law enjoins upon the present board of trustees the duty of removing said school back to the former site, and to a schoolhouse abandoned three years since, without submitting the question of removal to the proper electors. If the present board of trustees were not under such duty, then this proceeding will not lie for the purpose sought to be attained. (Code Civ. Proc., § 566.)
The court below, however, in the first stage of the proceedings, was of opinion that the question of the change of the location of said school from its former to its present site should, under the circumstances, be submitted to the electors of said district; and whether the action of the court upon this point be regarded as an order that such election be held, or as a suggestion of the propriety of settling the controversy by such election, to be held under the provisions of the school law, the fact appears by the supplemental answer that such order or suggestion was voluntarily acquiesced in, and such election held pursuant to the provisions of the school law, whereat, as appears, the supporters of each side of the controversy engaged their utmost endeavors to prevail, and the result was a ratification of the former action of the trustees. It is a familiar principle of law that although an agent, in doing an act for the principal, departs from or exceeds his authority, such action may be ratified by the principal. The electors of said district having, by their vote, not only ratified the former moving of said school, but in effect declared their will to be that the school remain where now located, it cures the former irregularity, as far as it can be cured; But, leaving the question of ratification *143aside, said election, in effect, as a new proposition, to all intents and purposes, involved the question whether said school should remain at its present location or be removed back to its former site, which question was resolved in favor of the present location. I am unable to conceive how it can be successfully-affirmed, in the face of this authoritative declaration by the electors of said district, that said school must still be carried back to the former location, simply because of an irregularity committed by a board of trustees in removing said school to its present site three years ago. Giving to that irregularity all the force it could have, it does not destroy the right of the electors of said district to now determine where said school shall be located; and that determination has been announced in favor of the present location, as appears by the supplemental answer. I therefore, upon these grounds alone, concur, without hesitation, in the conclusions that the supplemental answer, which is confessed as true by the demurrer, shows a sufficient defense to the proceeding; and that judgment of dismissal, with costs, in favor of appellants, should be entered in the court below.