(dissenting).
This action was to enjoin the issuance and sale of bonds for the purpose of obtaining money with which to erect a new high school building for High School District “C” which consists of 13 elementary or common school districts, including Common School District No. 5. The only question before us is whether the court erred in striking certain allegations from plaintiffs’ complaint.
The matters stricken consisted of approximately eight typewritten pages which was substantially all of the complaint. Briefly summarized those allegations are to this effect: That Common School District No. 5 has two old and antiquated grade school buildings, one at Stockett and the other at Sand Coulee, both of which are in a deplorable condition without modern heating or sanitary facilities; that the state superintendent of public instruction has warned defendants that unless more adequate grade school housing be provided, state assistance would be withheld; that on the other hand High School District “C” has a modern and adequate high school building at Centerville, capable of accommodating well over 100 high school pupils, whereas the present high school enrollment does not exceed 60 and the enrollment will decline in the future; that there is no need for a new high school building in School District “C” and the proclaimed purpose of constructing such a build*597ing is not the real and good faith purpose but is a sham and a pretense in order to make the existing high school building available as a grade school building for Common School District No. 5; that the construction of the proposed new high school building is a device to cause the taxpayers in District “C” other than Common School District No. 5 to contribute about two-thirds of the cost for the grade schools; that in so doing the trustees of District No. 5, who are also trustees of District “ C ’ ’ have acted arbitrarily and oppressively and abused their powers and responsibilities as representatives of the residents of the common school districts other than District No. 5; that there was no adequate remedy available to the electors in the common school districts, other than District No. 5, comprising High School District “C” for the following reasons: That Common School District No. 5 has within its boundaries approximately one-third of the taxable valuation of High School District “C” and approximately 340 qualified electors and taxpayers; that about 240 qualified electors and taxpayers reside in the other common school districts making up High School District “C” and contribute about two-thirds of the taxable valuation of High School District “C”; that in three previous elections voting precincts were established in each of the common school districts and the votes in each were tabulated separately from which it was demonstrated that the qualified electors and taxpayers who reside and vote in District No. 5 were almost solidly in favor of the bond issue and the site while those who reside in the other common school districts are almost unanimously opposed to the bond issue, which facts were well known to the defendant trustees and clerk of district “C.”
From the stricken allegations it would appear that what was actually needed was adequate grade school buildings for District No. 5 and not a new high school building for District “C.” Had that been accomplished directly the cost would have had to be borne by District No. 5 alone. To avoid that result, if the stricken allegations be true, it was proposed to allow the existing high school building which is alleged to be adequate for *598high school needs to be nsed as a grade school building for District No. 5 and build a new high school building, the cost of which would be spread over the entire area of District “C.’r
I think if the stricken allegations be true, and at this stage of the case we must assume they are true, Mills v. Pope, 90 Mont. 569, 4 Pac. (2d) 485; Downs v. Nihill, 87 Mont. 145, 286 Pae. 410, then defendants, who were not able to construct or furnish grade school buildings under R.C.M. 1947, section 75-4601, so as to spread the cost over the entire High School District “C” directly, may not accomplish the same thing by indirection.
By striking analogy, I think the ease of State ex rel. City of Jefferson v. Smith, 348 Mo. 554, 154 S.W. (2d) 101, supports this conclusion. To brush the question off as a political one which the electors of High School District C” decided at the polls is not an adequate answer to the question because, as pointed out above, from the allegations that were stricken the electors in the sparsely settled outlying districts were so far outnumbered that the result of the election could be forecast with considerable accuracy particularly when it was the outlying district that must supply approximately two-thirds of the cost. With but few exceptions the voters in District No. 5 would vote for the project in order to spread the cost over the whole of District “C,” whereas those in the other districts would vote against it, but to no avail since they are in the decided minority.
It should be noted too that the outlying districts under the law have no voice in choosing the members of the board of trustees for the high school district. R.C.M. 1947, section 75-4601.
Furthermore, the fact that the existing high school building belongs to District No. 5, if such is the case, is no answer to the question before us here. It might have called for some adjustment between District ££C” and District No. 5, but would not authorize the construction of a new high school building when the existing building is adequate and when the need is not for *599a new high school building for District “C” but for a grade school building for District No. 5.
Nor do I think the objection comes too late.
The majority opinion, in reliance on Hendrickson v. Powell County, 112 Mont. 1, 112 Pac. (2d) 199, and other cases of like import, holds that the attack here comes too late when it comes after the election. Those cases simply hold that a statutory rule of procedure will be declared directory only when questioned after election whereas it may be mandatory before election.
Here we are not dealing with a statutory rule of procedure but with a question that goes to the jurisdiction. Unless the proceeding is one wherein a new high school is the real and true motivating purpose there is no jurisdiction to proceed. The attack here is in time.
I think the judgment should be reversed and the cause remanded with directions to set aside the order sustaining the motion to strike and to enter an order denying it and to allow defendants a reasonable time to further plead.