dissenting:
I am unable to hold that the writ of quo wcurranto can be maintained on the facts disclosed by this record. The constitutionality of the law under which' the board of education is acting, the election or qualification of its members, their power to divide the city into school districts, and to use all of the powers conferred by the law under which they are acting to maintain schools, or that they are performing that duty, are not questioned. But the complaint is, that the board has provided a school house, and by a rule of the board require all of the colored children of school age in the city to attend that school, thereby excluding them from the other city schools. There is no complaint that this building is not as commodious, as well furnished, and supplied with as competent teachers, as either of the other city schools.
It is urged that the rule which requires these children to attend this particular school is a usurpation of franchises and powers not granted by the charter, and for that reason the writ will lie, and is the proper remedy. It can not be successfully contended that this board do not have the •power to separate the school children to some extent, or for some purposes. That the board may separate the sexes, if not prohibited by law, or may provide school houses for children of particular ages or a certain advancement in education, or divide the same school into different grades, and require each to occupy separate rooms, I presume none will question. This is clearly a power the board possesses, and they usurp no power in its exercise. Possessing the power to separate to some extent and for some purposes, a mere mistake in its exercise, or a misapplication of the powers, surely can not be held a usurpation that must work a forfeiture of the charter and a dissolution of the corporation. And on a conviction, can any one suggest any other judgment sanctioned by the law that can be rendered ? I am aware of no other, nor has any been suggested.
To carry out one of the great and most cherished objects of our government,—the education of the youth of the State,— the general school system has been adopted, and the General Assembly, to further the same object, has granted this and a large number of other special charters. They, and the directors under the general law, are the instruments employed by the government to carry into effect this great purpose. This being true, can it be possible that districts under the general law, and under special charters, may be abolished by this writ because the directors or board of education may, as they all doubtless do, mistake their duties and powers ? Is it possible that by this writ the whole system may be abolished, or greatly embarrassed, and its efficiency destroyed ? Surely not. And yet, if the writ will lie in this case, I can perceive no reason why it will not lie in every case where the board of directors, or of education, mistake their duty. The purposes and the policy of the State can not be thus defeated, nor can we make arbitrary distinctions to prevent such results.
I hold that municipal bodies can not be dissolved by this writ, nor can corporations like this and other school districts be thus dissolved. They are -the creatures of the government, and are under legislative control, and when they abuse their powers, or usurp authority, the General Assembly will afford the correction by a repeal or amendment of their charters, if deemed necessary. The courts will, by mandamus and injunction, compel an observance of duty, but should not, nor can they rightfully, dissolve such organizations. If it were held that this writ would lie for such a purpose, then, under our statute, counties, cities, villages and townships could be dissolved by adjudging a forfeiture of their franchises, and townships and counties left without local government, which is indispensable under our institutions. To my mind it is clear that" no public corporation is amenable to this writ.
For what imaginable reason could the General Assembly have intended to confer power on the courts to dissolve a municipal body? Such organizations are created to serve the public, and are absolutely under the control of the General Assembly. If they or their officers abuse their power, the General Assembly may repeal their charter and terminate their existence, or impose penalties without a forfeiture being found and declared. Not so with private corporations, as they are not under legislative control, and their existence can only be terminated by surrender, or a forfeiture judicially declared. I therefore hold that the statute was not intended to, nor does it, confer such jurisdiction on the courts; but if it was, the creation, continuance and termination of municipal bodies is purely a legislative function. I can imagine nothing farther removed from judicial power than the creation or termination of a municipal corporation.' The exercise of such a power by the court would be to encroach upon the legislative power of the government. The power is so purely legislative that its exercise can not, even by express enactment, be conferred on the judicial department without a violation of article 3 of the constitution, which distributes the powers of the government. Even if the statute can be construed as conferring power to declare a forfeiture of this charter, it would violate that article, as that power is vested in the legislature, and can not be delegated to either of the other branches.
The purpose of this writ is to correct public, and not private, wrongs. It is an extraordinary remedy, that can be employed only by consent of the court on application for the purpose, and is not a writ of right. It is used to oust usurpers into public offices, and to dissolve private corporate bodies which are usurping power that belongs to the government until legally granted to the body. It is a quasi criminal offence for a person to intrude into a public office to which he has not been legally elected or appointed, and so of indivicluals who usurp privileges and franchises which can only be rightfully exercised by virtue of a grant from government. Hence the government has a right to inquire and be informed by what right an individual is exercising governmental functions, or of persons exercising franchises, the source from which they are derived, and by what authority they are exercising them; and on conviction they are punished for exercising governmental powers by usurpation and- wrong. If we hold the writ lies for every mistake by an officer or corporate body, for every official act of the one, or corporate act of the other, and it can thus be brought before the courts, and every mistake visited with a forfeiture, I think we would violate the statute, as this could not have been intended by the General Assembly.
If the officers of the board acted maliciously, and the children have been deprived of any right, the officers of the board are individually liable in case for the damages sustained. If they acted in good faith, in the belief that they were acting within the scope of their power, but were mistaken, and have deprived the children of any legal right, mandamus will correct the wrong and restore the right. For these reasons the writ does not lie. It only lies where there is no other remedy given by the law, but here there are two other remedies.
As I hold the writ does not lie, I refrain from expressing any opinion on other questions presented and urged in argument. I think the judgment of the court below should be affirmed.