dissenting. I am unable to agree with the conclusions reached by my associates in this case. I have no particular-complaint to make of the propositions of law announced in the majority opinion, but I do not believe that they are applicable to the facts in this-case. Plaintiffs brought this action on the theory that “defendants *413lave attempted to organize, establish, and conduct a district high school” without complying with the provisions of § 1192, Compiled Laws 1913, which reads: “In any district containing four or more schools, and laving an enumeration of sixty or more persons of school age residing therein the board may call, and if petitioned so to do by ten or more voters in the district, shall call a meeting of the voters of such district, in the manner prescribed in § 1185 to determine the question of establishing a district high school. If a majority of the voters at such meeting vote in favor of establishing such high school, the meeting shall further proceed to select a site therefor, and to provide for the erection or purchase of a school building or for the necessary addition to some school building therefor. Thereupon the board shall erect or purchase a building or make such addition for such high school, as shall be determined at such meeting and shall establish therein a district high school containing one or more departments, and employ teachers therefor.”
Defendants concede that the provisions of this section were not complied with, but they positively deny any intention to establish or conduct a high school. The issues were framed, and the trial had in the court below, proceeded apon the theory that the sole and controlling question to be determined in this action was whether the defendants sought to establish and conduct a high school, and plaintiffs’ action must stand or fall upon the answer to this question. If defendants sought to establish and conduct such high school, plaintiffs should prevail, if they did not, defendants should prevail.
The trial judge, who saw the witnesses and heard their testimony as it fell from their lips, found (and in my opinion his findings are correct) that the defendants neither established nor attempted to establish such high school.
The testimony shows that certain pupils in the school district were so far advanced that it was desirable that they receive instruction in certain advanced subjects, and some of the residents of the district took this matter up with the school board, with the result that the county superintendent of public instruction was called in to confer with the school board in regard to the matter^
*414She testified in part as follows:
Q. At that time, what was your mission before the board ?
A. They called me out to interpret the law, whether they had a right to hire another teacher and to teach a part of the eighth grade subjects and other higher branches.
Q. And now, did you then consent to their going ahead and hiring a, teacher, and in teaching of such grades or additional subjects in that district ?
A. I did.
Two members of the school board voted in favor of engaging an additional teacher to teach such advanced subjects. Mr. Salzman, the third member of the board, voted against the proposition. He testified upon the trial in part as follows:
Q. Now, Mr. Salzman, you say Miss Nielson also told you that, in the presence of the members of the board, or the board of this district, that she thought you had the right to go ahead and teach these additional subjects, or grades, as you put it ?
A. Yes.
Q. You say she didn’t call it a high school ?
A. No, she didn’t, herself.
The state Constitution provided for the establishment and maintenance of a system of public schools (Const. §§ 147-152), and created the offices of state superintendent of public instruction (Const. § 82) and county superintendent of schools (Const. § 150). The legislature, in compliance with the constitutional mandate, enacted laws for the establishment and maintenance of such public schools, and prescribed the duties of the state and county superintendents of public instruction. The legislature provided for the organization of common school districts as public corporations (Comp. Laws 1913, §§ 1140 et seq.) and for the government of such corporations. It provided that the governing body of a common-school district should consist of three directors,, and conferred upon such school directors certain powers and duties, the execution of which requires the exercise of judgment and discretion. Among other things the legislature said: “The district school board shall have the general charge, direction and management of the. *415schools of the district, and the care, custody and control of all the property belonging to it, subject to the provisions of this chapter. . . Comp. Laws 1913, § 1173.
The school hoard “shall organize, maintain, and conveniently locate-schools for the education of children, of school age within the district, and change or discontinue any of them as provided by law.”' Comp. Laws 1913, § 1174.
That such board “shall make all necessary repairs to schoolhouses,. outbuildings and appurtenances, and shall furnish fuel and all necessary supplies for the schools and provide for janitor service.” Comp.. Laws 1913, § 1175.
That such hoard “shall, with the approval of the county superintendent of schools, furnish to each school all necessary and suitable furniture, maps, charts, globes, blackboards, and other school apparatus- . . . [and] shall appropriate and expend, each year not less than $10 nor more than $25 for each school of the district for the purpose-of school library. . . .” Comp. Laws 1913, § 1176.
That such board “shall have the care and custody of the library and: may appoint as librarian any suitable person, including one of their number . . ' . and shall make rules to govern the circulation and-care of the books.” Comp. Laws 1913, § 1177.
That such board “shall employ the teachers of the school district and’ may dismiss a teacher at any time for plain violation of contract, gross-immorality or flagrant neglect of duty.” Comp. Laws 1913, § 1178.
The board is also given the power to prescribe regulations for the admission of pupils; to “assist and co-operate with the teachers in the-government and discipline of the schools, and may make proper rules and regulations therefor [and] . . . may suspend or expel . . .. [for certain periods of time] any pupil who is insubordinate or habitually disobedient.” Comp. Laws 1913, §§ 1179, 1180.
That such board “subject to the approval of the county superintendent, . . .. shall have [the~\ power to determine what branches, if any, in addition to those required by law shall be taught in am/ school' in the districtComp. Laws 1913, § 1181.
So far as the record discloses, the school board had ample funds,, available for the purpose of paying the salary of the additional teacher. It must be conceded that the school board had full authority to engage-*416teachers, and also, upon approval of the county superintendent, had power to require branches, in addition to those required by’law, to be taught in any school of the district. Comp. Laws 1913, §§ 1173, 1181. The determination by these administrative officers of these questions (except possibly in unusual cases) is not subject to review or control by the courts in an equitable action. The board certainly had authority to engage whatever teachers were necessary to carry on the educational work of the district and also to require instruction to be given in the additional branches specified by this board. If the school board had ■engaged an additional teacher and placed her in one of the other schoolhouses in the district, and required her to teach the subjects under consideration, then the board would clearly have been within the letter of the law. But as a matter of convenience, and probably in order to avoid confrrsion and interference with the work carried on in such schoolhouses, and purely as a temporary arrangement, such school was •conducted in a farmhouse, the use of which was given to the school without compensation. No complaint is made by any person whose children are required to attend school in such farmhouse; such persons are entirely satisfied with the arrangement. The plaintiffs base their right to be heard on the ground that they are taxpayers of the district, and contend that the moneys sought to be expended by the board in payment ■of the teacher’s salary would constitute an illegal expenditure of public funds, and as such should be enjoined by a court of equity in a taxpayer’s suit.
It is true, as suggested in the majority opinion, the law requires that the voters of the district be permitted “to vote upon the question of the selection, purchase, exchange or sale of a schoolhouse site, of the erection, removal or sale of a schoolhouse.” Comp. Laws 1913, § 1184. That question, however, is not presented by the pleadings herein, but this action is based solely upon the theory that the defendants- have sought to establish a high school without complying with the statutory provisions relating to the establishment of a high school. But even if this question was -presented, it seems clear to me that there is nothing to justify the conclusion that defendants have sought to perform any ■of the acts or exercise any of the powers which this section requires to be performed or exercised by the voters of the district. The record negatives”any intention on the part of the school board to select or pur*417chase a schoolhouse site, or erect or remove a schoolhouse. The farmhouse was vacant, and permission was granted to use it during the particular school year*. Assuming that one of the schoolhouses of the district had been destroyed by fire and the school board had obtained permission to temporarily utilize this same building until a new schoolhouse was erected, would it be contended that such act on the part of the school board constituted a violation of law or an attempt on their part to select or purchase a schoolhouse site? The answer seems obvious. In principle I can see no difference between the case supposed and the case at bar. In this case the school board merely obtained temporary use of the building in question. Everything indicates that the arrangement was purely temporary. In fact there is no contention on the part of the plaintiffs that a permanent arrangement was intended.
It is true that the records of the school clerk (who was bitterly opposed to the engagement of the additional teacher) designate the school conducted in the farmhouse as a “high school,” and some of the witnesses testify that this term was used in the proceedings had.by the school board. This, however, has little or no tendency to prove that defendants intended to establish a high school within the contemplation of § 1192, Compiled Laws. I believe that the term “high school” was rised purely in a colloquial sense, to indicate that certain “higher” subjects would be taught therein. In this connection it may be mentioned that one of the witnesses for the plaitiffs testified that certain pupils in the district who had been attending “college” at Valley City returned to the district and received instruction in the high school. The testimony does not show what particular educational institution in Valley City such pupil or pupils attended, but it is indicative of the sense in which the terms “high school” and “college” were used by the witnesses. I believe that the trial judge correctly found that the defendants did not establish, or attempt to establish, a high school, and if this finding is correct plaintiffs’ cause of action falls. In my opinion the judgment should be affirmed. I am authorized to say that Mr. Justice Bruce concurs in the foregoing dissent.