DISSENTING OPINION. .
BROWN, J.I concur in the views expressed by my associate, Judge Graves, in the majority opinion, so far as that opinion announces the law to be that respondent as State Superintendent of Public Schools is without power to withhold current funds from a school district because such district has through an intentionally false enumeration obtained at a prior apportionment more money than its just share of the school funds of the State.
The claim which would arise in favor of the State against a school district by reason of money received by such district through a fraudulent enumeration, is of a strictly equitable nature, and the relator not being clothed with any equitable jurisdiction or power to *116take testimony, would, have no authority to adjudicate a matter of that kind.
' When a ministerial officer is empowered to correct errors of some other officer, that power is usually construed to apply to clerical errors only. [Petition of Powers et al., 52 Mo. 218; Polk Co. v. Sherman, 99 Ia. 60.]
In my opinion the power conferred upon the respondent by section 10823, Revised Statutes 1909, to correct errors in the apportionment of former years, applies only to clerical errors made by the respondent himself, or to mistakes growing out of errors in enumerations certified to him and about which there is no controversy.
When a school district asserts that there is no error in its enumeration for former years ,(as in this case) the State Superintendent of Public Schools is powerless to act, even though such former enumerations were padded with fictitious names.
I dissent from .that part of the majority opinion which holds that school enumerations are judicial determinations and that respondent cannot in this action dispute the correctness of the school enumeration of the Moberly School District taken and certified in the current year, 1911.
It is true that the duties of -respondent are ministerial, but under section 10920, Revised Statutes 1909, he is expressly required to “exercise such supervision over the educational funds of the State as may be necessary to secure their safety and correct application -and distribution according to law.”
■ This section, in my judgment, empowers him to challenge any enumeration which he believes to be incorrect or fraudulent.
The case of State ex rel. v. Cass County, 137 Mo. App. l. c. 708, cited to support the doctrine that school enumerations are not subject to collateral attack, does not.sustain :the views expressed in-the majority opin*117ion. The enumeration which the Kansas City Court of Appeals held could not be collaterally attacked in State ex rel. v. Cass County, supra, was taken by a .legislative body, to-wit, a city council under section 7239, Revised Statutes 1909; and as the law required it to be spread upon the records of the city council, it .clearly implied that the council should verify its accuracy before it became effective. The taking of the census under said section 7239 was one step toward determining whether or not the city of G-ranby should be governed by the “Local Option Law.” Therefore, it may properly be classed as a legislative proceeding and the same favorable presumptions indulged in favor of its validity. [Cox v. Mignery & Co., 126 Mo. App. 669.]
School enumerations stand on quite a different footing. The law, section 10790, Revised Statutes 1909, does not require school boards to examine, approve or make a record of enumerations, but simply commands such boards to “take or cause to be taken, and forwarded to the county clerk an enumeration,” etc. The accuracy of a school enumeration is only verified by the oath of the enumerator, and on no sound theory can it be classified as a judicial determination.
To sustain the doctrine that school enumerations are judicial determinations and, therefore, not subject to collateral attack, the majority opinion cites the cases of Lingo v. Burford, 112 Mo. 149; Jeffries v. Wright, 51 Mo. 215; State v. Evans, 83 Mo. 319; Union Depot Co. v. Frederick, 117 Mo. 148, and Light and Water Co. v. Lebanon, 163 Mo. 259.
The case of Light and Water Co. v. Lebanon, supra, simply holds that the passage of an ordinance by a city council must be proven by the journals of such council, and cannot be established by parol evidence; and consequently, it does not in any manner support the views expressed in -the majority opinion.
*118The ease of Lingo v. Burford, supra, involves a collateral attack on the judgment of a county court establishing a public highway after due notice had been given of the proceeding to open such highway; and is therefore in no respect similar to an ex parte school enumeration..
Jeffries v. Wright, supra, involves an attempt to impeach the judgment of a justice of the peace by oral evidence that the return upon which it was based was false.
State v. Evans, supra, embraces a collateral attack upon a judgment of the county court granting a saloon license.
The case of Union Depot Co. v. Frederick, involves a collateral attack on a judgment of a circuit court in a condemnation proceeding; so that all these cases- involve attacks upon proceedings distinctly judicial in their character; and, therefore, do not even tend to sustain the proposition that a school enumeration is a judicial determination.
The doctrine that school enumerations are judicial determinations appears to me to be largely a judicial fiction. The duties of school enumerators are entirely ministerial and the duties of the school boards are administrative and not judicial in their nature. It is true that school enumerators and school boards act under an official oath, but the same may be said of every other officer in the State, however humble.
Judicial duties are those which are ordinarily vested in the judicial department of the State. The proceedings of administrative boards- are not judicial in their nature. [State v. Hathaway, 115 Mo. 36; State ex rel. v. Ryan, 182 Mo. 349; 23 Cyc. 1613.]
In our own State, in the case of State ex rel. v. Cartwright, 122 Mo. App. 257, the correctness of a school enumeration was called in question in a proceeding by mandamus to compel the establishment of a separate school for children of African descent in a *119district containing more than fifteen colored children of school age. One of the grounds upon -which the writ was resisted was that the last enumeration showed only ten colored children of school age residing in said district; and in that case, the respondent, like-the relator here, contended that no evidence could be received to contradict or show the falsity of the official enumeration. In deciding that case, .the Kansas City Court of Appeals, in a well reasoned opinion, held that the correctness of the enumeration being-challenged, it was competent to receive oral evidence-to contradict it, and it being proven that many colored children residing in the district were fraudulently omitted from the enumeration, such enumeration was. permeated with fraud, and constituted no defense to the action.
In my opinion, that decision is sound law, and if' an enumeration may he attacked collaterally because the names of children of school age are fraudulently omitted therefrom, it must follow that the enumeration in the ease at bar may he attacked on the ground that it is padded with fictitious names or contains the names-of persons who should not have been included therein.
The case of Judges, etc., of Hickman County v. Moore, etc., 65 Ky. 108, involved the construction of. a statute which authorized the sheriff, upon a proper order of the circuit court, to employ extra guards at. the expense of the county, to protect the county jail.. The guards were employed under this order and their compensation • audited by the circuit court; hut notwithstanding their claims had been thus audited, the Supreme Court of Kentucky held that the county court could not be compelled by mandamus to levy a tax to-pay their claims against the county, because it was-proven that said guards had been unfaithful in allowing prisoners to escape from the jail which they were employed to guard.
*120If the audit of a claim by a circuit court is not such a judicial act as to bar inquiry in a proceeding by mandamus, then with much stronger reason, we should say a mere school enumeration is not such a judicial act as to be invulnerable to attack in the same kind of an action.
In the case of Van Akin v. Dunn, 117 Mich. 421, a contractor for certain drainage work for a county failed to perform his contract according to agreement, whereby the drainage was ineffective. However, the commissioner appointed to supervise the work and audit the contractor’s bills, approved the work and issued his order therefor against the county. An assignee of said order sought by mandamus to compel the payment of same by the treasurer of the county. In refusing to grant the writ, the Supreme Court of Michigan said: “The record clearly shows that Bolton did not perform his contract, and that he is not entitled to payment, and in this respect, his assignee is in no better position. The writ of mandamus is a discretionary writ and, while it may issue where there is a clear legal right, a court should always refuse it where the record shows the injustice of the relator’s claim. This it may do and should do in the interest of fair dealing and good morals, whenever the claim is tainted with fraud.”
“Mandamus is a discretionary writ, and those who invoke its aid must come into court with clean hands. It will not be issued to accomplish an illegal purpose.” [26 Cyc. 325.]
In the case of Board of Supervisors v. Township Supervisor, 94 Mich. 386, the full board of supervisors of a county had ordered the levy of a tax for the pretended purpose of purchasing a county poor farm, 'but, in fact, the purchase was intended for a tannery. There being no law authorizing a tax levy for such last named purpose, certain township supervisors of the county refused to spread such tax upon their rolls, *121on the ground that while the order for its levy designated a lawful purpose, to-wit, the purchase of a poor farm, yet the real and secret purpose of levying the tax was illegal and unauthorized. The Supreme Court of Michigan held that the township supervisor, although acting under a plain statutory duty to levy and spread upon his rolls such tax as the county board had ordered, could not be compelled by mandamus to spread upon his rolls a tax which was fraudulent and ordered for an illegal purpose.
"Whether the enumeration under consideration is correct, as alleged by relator, or padded with fictitious names, as contended by respondent, I think the majority opinion which bars an inquiry into the disputed facts, is wrong and may encourage the padding of other school enumerations and the consequent unlawful diversion and withdrawing of the public school moneys from the State Treasury.
Kennish, J., concurs in the views expressed in this dissenting opinion.