dissenting. I do not concur in the conclusion reached by the majority in this case. In my opinion, plaintiff is in no' position to invoke the aid of the order of mandamus.
The remedy by mandamus in this state is.statutory. It is provided by section 3373 that “ the action of mandamus is one brought in a court of competent j urisdiction to obtain an order of such court commanding an inferior tribunal, board, corporation, or person to do, or not to do, an act, the performance or omission of which the law enjoins as a duty resulting from an office, station, or trust.” Section 3777 is as follows: “ The order of mandamus is granted on the petition of any private party aggrieved, without the concurrence of the prosecution of the state, or on the petition of the state by the district attorney, when the public interest is concerned, and is in the name of such private party, or of the state, as the case may be, in fact, brought.” And section 3778 provides that ££ the plaintiff in such action shall .state his claim, and shall also state facts sufficient to constitute a cause for such claim, and shall also set forth that the plaintiff, if a private individual, is personally interested therein, and that he sustains, or may sustain, damage by the non-jierformance of such duty. * * * "
It is manifest from these provisions, as I think, that the order of mandamus will issue on the petition of a private individual, commanding a public officer, or board of officers, to do a particular act, only in cases when the act is enjoined by the the law as an official duty, and plaintiff is interested *352in the performance of that duty, and does or may suffer damage by reason of its non-performanee., The remedy is allowed private parties for the protection or enforcement of their personal rights under the law, and they must be aggrieved by the act or omission complained of, in the sense that they are or may be damaged thereby, with reference to some right or privilege which they are entitled under the law to enjoy, or they cannot invoke the aid of this extraordinary remedy.
It is held by the majority that it was the duty of defendants to take action on plaintiff’s petition, either granting or denying his prayer, and that, by their refusal to act upon it, he is deprived of the right of appeal,to the county superintendent. It is said that the duty of defendants in the premises arises under section 1809, and the right of plaintiff is created by section 1829. The former section is as follows: “Whenever an independent district has been formed out of a civil township or townships, as herein contemplated, the remainder of such township, or each of such townships, as the case may be, shall constitute a district township as provided in section 1713, and the boundaries of such district township and independent district may be changed, * * * with the concurrence of their respective boards of directors.” By this section the question whether changes in the boundaries between the districts shall be made is left to the discretion of the boards of directors, and no change therein, can be made except with the concurrence of both boards. The board of directors of each district has the right to concur in any proposed change of the boundaries, or to refuse to concur therein, as to it shall seem to the best interest of the district. The whole question is left to its discretion, and when it has taken action thereon it cannot be said, whatever- its action an ay have been, that it has neglected or refused to perform its duty in the premises. As the proposed change in question could be made only.with the concurrence of defendants, their refusal to take any action on the proposition was equivalent to an express refusal to concur; for such refusal to take action *353left the question in precisely the same situation as it would have been placed in by an express refusal to concur. It seems to me clear, then, that it cannot be said that defendants have refused to perform their duty in the premises. They have simply refused to concur in the proposed change, and it was their right to refuse to concur therein.
But it is said that, by refusing to take action on the proposition, they deprived plaintiff of the right to appeal to the county superintendent, as he could not appeal until some order was made by them. The right of appeal from an order or decision of the board of directors is given by section 1829, which provides that any person aggrieved by any decision or order of the district board of directors, in matter of law or fact, may appeal therefrom to the county superintendent. But it is manifest, I think, that plaintiff would not have been aggrieved in any legal sense by any order which defendants might have made in the premises, for the reason that it cannot be said that, upon any state of facts which might have existed, he had the legal right to dfemand that the change in the boundaries should be made. He, undoubtedly, had the right to demand that the board of directors of the district township should afford him such school facilities as were reasonable. But he did not have the legal right to demand that the boundaries between the two districts be so changed as that he would be included in the independent district, however superior its facilities may have been. And, in addition to this consideration, as the whole question is left to the discretion of the board, it cannot be said that any order it might have made on the proposition would have involved the determination of any question of either law or fact. Albin v. Board of Directors, 58 Iowa, 77, cited in the majority opinion, is not at all in point. That case arose under section 1798, which provides that a change in the boundaries between districts shall. be made on a given state of facts, on the petition of two-thirds of the citizens of the territory to be affected by the proposed change. The petitioners in that case are enti*354tied to the change as. matter of right, while, under the statute in question in this case, the question is left to the discretion of the boards of directors.
In my opinion the judgment of the circuit court ought to be reversed.
Adams, J\, concurs in this dissent.