I dissent. I think this case is absolutely controlled byState ex rel. Blenkner v. Stillwater County, 102 Mont. 130,56 P.2d 1085, and the case of In re Pomeroy, 51 Mont. 119,151 P. 333. Defendants' motion to quash was properly sustained and should be affirmed. A writ of mandate will only issue to compel the performance of a clear legal duty. There was no showing that the defendants have failed to perform such duty. The case of McAdoo Petroleum Corp. v. Pankey, 35 N.M. 246,294 P. 322, is exactly in point and sustains the view I have expressed. (See, also, First Nat. Bank of Plains v. SandersCounty, 85 Mont. 450, 279 P. 247.)
The corporation that bought the land used it during its legal life. When its charter expired and it died a legal death and could no longer use the property by reason of failure to reincorporate, the surviving directors, representing the stockholders, the heirs of the corporation, ask that the purchase price be returned from the school fund after 28 years have elapsed. There is no equity in the demand and no law to support it. The school funds are sacred and inviolate. Heretofore they have been well guarded in accordance with the mandate of the Constitution, which declares that such funds "shall forever remain inviolate, guaranteed by the state against loss or diversion." (Sec. 3, Art. XI.)
I am satisfied that the majority opinion is wrong, and that the precedent set will arise to plague this court in the future and, if it is adhered to, it will result in serious loss of the school funds set apart by the Constitution for the children of this state.
Rehearing denied October 10, 1939. *Page 140