(dissenting): In my judgment the facts do not warrant much that is said in the majority opinion nor the conclusion at which the court has arrived.
The issues are clear; the facts simple. Plaintiff was a student in the Eureka high school. The rules provided substantially that “there must not be any books or papers in possession of anyone during the examination; that anyone known to give or receive help in any way would themselves receive zero in the examination; that any student receiving information during an examination should receive zero in the subject.” Notwithstanding the rules, plaintiff carried to the classroom, folded in a blotter, a set of notes covering the entire subject of American history. She was observed by the teacher referring thereto and directed to proceed no further with the examination. The incident was reported to the principal, to whom the plaintiff made explanation. The superintendent and principal did not agree. The superintendent directed that plaintiff be given a second examination, but her papers were not graded. A meeting of the faculty was called, before whom plaintiff appeared and made explanation of her possession of the notes, claiming it was accidental. The faculty took the matter under consideration and decided that under the rules she was entitled to no grade in American history. The matter was referred to the board of education which, after due consideration, upheld the view of the faculty. Without a grade in *96American history, plaintiff did not have sufficient credits to graduate. She then brought this action in mandamus to compel the board of education to issue her a diploma. The court substituted its judgment for the judgment of the board of education and directed issuance of a diploma showing plaintiff had graduated, notwithstanding the faculty and board of education had passed adversely upon her right to such a diploma, and notwithstanding that under the rules *of the school her grades were not sufficient to permit her graduation.
Under the circumstances there is no substantial reason for substitution of the court’s judgment for that of the faculty and board of education, and indeed such action is contrary to the rule of law announced by this court. There was no charge of bad faith on the part of the defendants .and none found by the court.
“The control of the city schools ... is devolved by the legislature upon the board of education. The discretion committed to that body is to be exercised . . . untrammeled by judicial interference. Its judgment, and not that of the court’s, must determine the proper solution of the practical questions of administration that continually arise. Its decisions must be final except when the action is capricious or arbitrary.” (.Williams v. Parsons, 81 Kan. 593, 594, 106 Pac. 36.)
In addition, it may be noted that mandamus will not lie except to compel the performance of a plain legal duty. (38 C. J. 692.) No such plain legal duty was shown. What was determined by the supreme court of Iowa is applicable here.
“The fundamental difficulty with plaintiff’s case lies in the fact that no one is able to put his finger upon a statute which compels the defendants, as a legal duty, to deliver to the plaintiff a diploma. We have looked them over with care, and find no such provision anywhere in our laws. This being true, it is manifest that no action of mandamus will lie. It has been decided in numerous cases that it will not lie unless the respondent has some legal duty to perform, and we need not do more than cite, in addition to Ford’s case, supra, Drew v. School Township, 146 la. 721. . . . As no legal duty to issue diplomas was ever’made by any law, the remedy by'mandamus will not lie.” (Sweitzer v. Fisher, 172 Ia. 266, 273.)
It is a gross mistake to require a board of education to issue a diploma to a student who is not entitled thereto under the rules of the school. Such a policy is injurious to the discipline of the schools; is unjust to other students who comply with the rules and make their grades in the proper way; is unfair and will prove unfortunate to the student himself whose success is achieved in such a manner.