Claxton v. Stanford

¶1I dissent from the opinion of the majority of the court as announced in headnote 4. It is assumed in the opinion that the school in question is “a public school,” whereas the petition and the amended answer of the defendant make an issue of fact as to whether the school in question is a public or a private school. The petition alleged that it was being operated as a public school. The amended answer averred that the “superintendent of *755said school, desiring the school to rim for a period of nine months, as well as the patrons and taxpayers of said district, in order to be an accredited school, agreed to run said school on its merits, strictly as, a private school for and during the months of September and October, 1924, and May, 1925, and pay the teachers from the matriculation fees that he might receive, the board of trustees consenting for the use of the school building for said purposes.” And further, that the superintendent “is now operating said school dependent solely on the matriculation fees collected from said pupils, with which to pay the teachers and other incidental expenses during the months of September and October, 1924, and May, 1925; that said school at this time is not being operated under the jurisdiction of the trustees, and they have nothing whatever to do with the operation of said school until October 27, 1924.” This raised an issue of fact which a jury alone can determiné; and therefore I think that the court below erred in passing upon this issue of fact and deciding that the school was a public school, and in making the mandamus absolute. I am authorized to state that Mr. Justice Gilbert concurs in this dissent.