dissenting. — I regret that I am unable to agree with my brothers in this matter which to them seems so plain. It appears to me that there is some conflict between some of the sections of the statute, particularly Sees. 2794 and 2798. I am willing to admit that a close question is presented. To arrive at the conclusion of the majority, it seems to me that the provisions of Sec. 2798 are overlooked or ignored. That section is as follows:
“See. 2798. Independent districts may subdivide for the purpose of forming two or more independent districts, or have territory detached to be annexed with other territory in the formation of an independent district or districts, the board of directors of the original independent districts to establish the boundaries of the districts thus formed, such new districts to contain not less than four government sections of land each; but in case a stream or other obstacle shall debar a number of children of school privileges, an independent district may be thus organized containing less territory; or, if such new district shall include within its territory a town or village with not less than one hundred inhabitants, it may in *370like manner be made np of less territory; Zmf in neither case shall the new district contain less than two government sectims of land, nor be organized except on a majority vote of the electors of each proposed district, and the proceedings for such subdivision shall in all respects be like those provided in the section relating to organizing cities and towns into independent districts, so far as applicable.”
I do not understand that it was the theory of the trial court or of defendants that the board of directors is clothed with discretion to grant or deny the request to call an election; but they claim, as I gather it, that because in this case the new or proposed district contains but one half-section of land, and because Sec. 2798 of the Code provides that a district may not contain less than two sections, there is no authority or power in the board of directors, or even in the electors, to create a district containing but one half-section. They concede that, if there is authority in the statute to do what the petition has asked, then, under the authorities, there is no discretion in the board. There would be no occasion to call an election to vote on the proposition of organizing or setting off a district consisting of but one half-section of land if a district of that size is prohibited, as I think it is, by Sec. 2798 above set out.
There are some further facts appearing in' the agreed statement and record which I think should be noticed. I shall endeavor not to repeat any matters set out in the statement of Justice Weaver. It appears that the petitioners are residents of the incorporated town of South Fort Des Moines; the town comprises the southwest quarter of Sec. 27 and the southeast quarter of See. 28, and is wholly within the corporate limits of the defendants’ school district; petitioners ask the board to establish the boundaries of a proposed independent district comprising said one half-section of land and comprising all the. territory within the boundaries of the town, and to set *371off such territory from the Independent School District of Maple Grove.
Defendants, by answer, allege that the petition as presented was in fact a petition for the subdivision of the Independent School District of Maple Grove into two independent, districts, which would be contrary to See. 2798 of the Code, and that, if the territory in the town should be set off as prayed, it would comprise only one half-section of land, and the balance of said independent school district would be reduced to less territory than four government sections; that See. 2794 does not apply to the conditions existing in said school district of Maple Grove ¡.that said school district had been organized and existed as an independent school district for many years, and, as originally organized, comprised about five sections of land; and that, after its organization, and about 10 years prior to this controversy, the United States government purchased an entire section of land, and thereby withdrew said section from the territory of the Independent School District of Maple Grove, so that there remained less than four sections of land; that, prior to said withdrawal of said section of land by the government, a schoolhouse had been located and erected, which site was about the center of the district as it then existed; that said schoolhouse is located immediately west of and across the street from the west line of the territory proposed to be withdrawn, and not more than one-half mile from the residence of the greater number of school children within the limits of the town, and is within one mile of the extreme limits thereof, and is more convenient to the school children residing in the town than to most children residing outside of said territory and within the territory comprising the balance of the district; that the schoolhouse so erected was a four-room brick building, situated upon the southeast corner of the southwest quarter of See. 28; that it was originally designed and has been so constructed that an addition of four rooms may be made thereto and a high school established and carried on in said building, and that it has *372been the intention of the members of the board to erect said additional four rooms and establish a high school therein as soon as the finances of the district warrant; that, if the petition of plaintiffs be granted, the setting off of said proposed territory would- greatly hinder and delay the defendants in establishing a high school as contemplated. The matters alleged in the answer as to the organization of the school district, location and character of the schoolhouse, and the intention of the board to establish a high school, and the taking o-f one section by the government, are admitted.
A plat of said independent school district, showing the original lines, the section taken for an army post, the location of the town of South Fort Bes Moines and the location of the schoolhouse was made part of the stipulation as to the facts, and is here set out.
No objection was made to the petition presented to the board of directors as to its sufficiency or the signatures thereto or qualifications of petitioners thereto. As said, it is conceded that the town has a population of more than 100 and that more than 10 of the voters signed the petition. This being so, plaintiffs contend that they are entitled to a writ of mandamus to compel the calling of an election. They contend that Sec. 2794 of the Code Supplement, 1913, applies, and that thereunder an independent district may be organized, comprising only the town; while defendants contend that the question is whether an independent district may be divided into two *373separate independent districts, each of which will contain less than four government sections of land; and that the territory proposed to be set off comprises less than two sections, contrary to the provisions of See. 2798 of the Code; and their claim is that the last mentioned section applies to the situation as it exists in this case.
There has been a slight change in Sec. 2794 since this controversy arose, but it does not materially affect this ease, I think. The petition to the school board, and the refusal of the board to grant it, was in January, 1914, and the petition for mandamus was filed January 30, 1914, so that these two statutes are construed as of those dates.
Such a situation as we now have has not been before presented or decided. I find it difficult to satisfactorily harmonize the two sections relied upon. Under Sec. 2794, an independent district comprising the town alone, if of the requisite population, or such town with contiguous territory may be formed; that is, an independent district comprising the town alone may be formed by carving it out of another independent district, by which the territory in the town alone will constitute a new district. In the instant case, it is not proposed to take into the new district any territory contiguous to the town, and this section does not place any limitation upon the number of sections of land or the territory to be included. But, by so doing, it necessarily subdivides the original independent district into two independent districts. Call it what we may, that is precisely the effect of forming, out of the Maple Grove Independent District, a new district comprising the town. Under Sec. 2798, this may not be done even if the new district includes a town, unless the new district shall contain two government sections of land. As we shall see later, the two sections ought to be construed together.
In State v. Board of Directors, 148 Iowa 487, at 492, we said:- “Concededly it is desirable that when an independent district is once organized and incurs expense, and levies taxes in pursuance of the purpose of its organization, there *374be as much stability in such organization in its territory and boundaries as is consistent with the public interest. ’ ’
We are not so clear that Sec. 2794 alone applies that we would feel justified in interfering with the organization of the Maple Grove'Independent District by requiring a writ of mandamus to issue, as asked by plaintiffs. Plaintiffs contend that Sec. 2794 is mandatory, and cite Munn v. School Township, 110 Iowa 652. They also cite eases wherein Sec. 2794 has been the subject of recent discussion. Rural School District v. School District of Kelley, 120 Iowa 119; School Township of Bloomfield v. Independent District, 134 Iowa 349; School District v. Jones, 142 Iowa 8; School District v. Independent District of Stockport, 149 Iowa 480; Wallace v. School Corporation of Lakeville, 150 Iowa 711. Though not cited, see also School Corporation v. Independent School District, 162 Iowa 257. In the case of School District v. Jones, supra, at page 11, it was said, “The design of Sec., 2794 of the Code seems to have been to enable the inhabitants of a city or incorporated town to form an independent school district of its-territory and that contiguous thereto.” But in that case, the question was as to the' incorporation of a ¿own embracing several districts and the effect of such action. The question as to the extent or amount of territory required under - the provisions of Sec. 2798 was not involved or determined.
In the case of School District v. District of Kelley, supra, it was ruled that “the reduction in size of the plaintiff independent district to less than four sections of land will not prevent its continued existence and does not constitute any obstacle to the incorporation of the defendant district. ’ ’ But the question in that case, as stated by the court, was: “Whether Code Sec. 2794, which provides for such a proceeding, is applicable to this ease; that is, whether that section, which provides for a petition to the board of directors of the school township in which the larger number of inhabitants of the town reside, for the creation of a district at least coextensive with the town limits, and composed of territory of *375the school township to which the application is made and an adjoining school township, is applicable where the town includes territory which is a part of one or more independent districts.” In that case, a part.of the town was in one district or township, and the other part of the town in another. But Sec. 2798 itself provides that a district may consist of less than four sections, -under certain conditions, but that, under neither of the conditions, named, may the new district contain less than two government sections.
In the case of School District v. Independent District of Stockport, 149 Iowa 480, it was ruled that Sec. 2794 is not impliedly repealed-by Sec. 2794-a, Code Supplement, 1907, and that the existence of an independent school district, including a city, town or village, and adjacent territory, does not prevent an organization of a new independent district, under provisions of Code Sec. 2794, as amended, including the same with other territory. It will be seen that, in all the cases cited by plaintiff in which Sec. 2794 is considered, there was the consolidation or division of two or more school districts, both independent, and .subdistricts of district - townships, or the setting off of an independent district from a school township. In none of them is the question of the subdivision of an independent district considered or determined. The most that may be claimed from the authorities cited is 1hat the court has held that, in the formation of any districts, under the provisions of that section, an independent school district may have territory taken from it, even though it reduces the district to less territory than four sections. It is argued for plaintiffs that Sec. 2798 deals with two or more independent districts because the heading of-this section is in the plural number — ‘ ‘ Subdivision of Independent Districts ’ ’— and that, in the body of the section, it reads that independent districts may subdivide, and that such section refers solely to subdivisions of two or more already existing independent districts and, for this reason, has no application to the facts in this case. But we think this does not necessarily refer to *376more than one district; though there is some language in School District v. District of Kelley, 120 Iowa, at 122, wherein Sec. 2798 is described as relating to “subdivision of an existing independent district by concurrent action of the boards of directors of the two districts”, etc. But I think plaintiffs’ point here is not well taken. This section simply affords the right to all independent school districts in the state to subdivide; that is, the provisions of the statute are not confined to one district only, but to all districts in' the state. Defendants contend that the proceeding on the part of plaintiffs contemplates the subdivision of the Independent School District of Maple Grove into two independent school districts, and is contrary to Sec. 2798, for that the new district would contain but one half-section of land, and that the old district remaining would contain less than four sections; that Sec. 2794 applies to a town or village in which there are two or more' school districts or parts of two or more districts; that such section is not applicable to a ease where only the subdivision of an independent district is'asked for. The defendant school district of Maple Grove, as originally created, consisted of almost five sections of land. It has been reduced to the extent of one section by the government, and it is now contemplated by appellants to further reduce it another half-section. It is claimed by defendants that the district has now a population and an assessed valuation to warrant the carrying on of a high school, and it is conceded that such is the intention of the board of directors, if it shall remain as it now exists. To divide it into two districts, would, in all probability, deprive the children of both districts of high school advantages for some time. The district has a modern brick schoolhouse centrally located, and it is the' intention to -add additional rooms sufficient for the purposes just indicated. These facts are not in themselves sufficient to warrant refusing the relief asked by plaintiffs if the law so requires; but, as before stated, we ought not- to interfere with the present organization of the district unless See. 2794 .clearly applies. *377The tendency of the later legislation on the subject of school districts has been toward the enlargement of the territory. See Sec. 2794-a (Chapter 143, 34th G. A.); also Sec. 2793, as amended by the 34th G. A. It may be noticed that Sec. 2794, as it was originally enacted, applied only to district townships in which was located a town, and provided for the separation of such town and contiguous territory from the district township. This was amended by the 29th G. A., by which “school townships” were changed so as to read, “school corporations”. If it can be held that an existing independent school district can be subdivided into two independent districts under See. 2794, it must be upon the theory that the amendment of Sec. 2794, adopted by the 29th G. A., repeals Sec. 2798; Sec. 2794, as originally adopted, did not conflict with 2798. 2794 was enacted before 2798. Repeals by implication are not warranted unless necessity therefor exists. "We think that there is no such necessity and that 2798 was not repealed; and, if this is true, then its provisions must govern, at least so far as the' extent of territory to be taken is concerned, even though division might be made under Sec. 2794. In other words, if both exist and both are applicable to the division of the independent school districts, then both ought to be considered together and the provisions of both made applicable and the limitations of territory provided by See. 2798 made applicable to a ease like the one at bar. I may add that, if it were a question for the court, we would doubt the wisdom of making the division contemplated; but that, doubtless, is, or would be, a question for the elector's, if Sec. 2794 alone applied to the situation.
For the reasons stated, I am of opinion that the judgment of the district court ought to be affirmed.