¶1(concurring specially).
¶2I concur in the reversal of this case and in the reason assigned therefor, but am not persuaded that the legislature intended by Sec. 1, Ch. 13, Ch. 41 Laws of 1955, that the distance between the student’s home and the nearest operating school was to be measured “by way of the nearest publicly used road”. This interpretation is based on the 1957 amendment which did not become effective until several weeks after this lawsuit was decided by the trial court. The official edition of the laws of that session was not generally available until some time after the trial court had entered its judgment.
¶3The trial judge was of the view that the legislature intended the distance involved to be measured by way of the nearest publicly used and passable road. I agree. This applies the language used by the legislature in a related section of the 1955 Act. Sec. 10, Ch. 13, Ch. 41, Laws of 1955. To me this seems more indicative of legislative intent than language used in an amendment adopted two years later.
¶4*422Further, I doubt that there is any real difference between these two views, hut if there is, it seems to me that a choice between them is unnecessary in this proceeding. Under either interpretation the school board had to make the initial factual determination. From that the aggrieved party is given the right of appeal. Sec. 44, Ch. 9, Ch. 41, Laws of 1955. This right of appeal, even though not exclusive, is such a plain, speedy and adequate remedy as to prevent the invocation of jurisdiction by mandamus. The school board’s motion to dismiss on this ground should have been granted.