The opinion
Clark:, C. J.,
dissenting: A mandamus lies only when there is a legal duty without discretion. The county commissioners are chosen to administer county affairs. Therefore, whether they jshall erect or repair bridges, courthouses, and the like, is a matter vested in their discretion, which the courts cannot regulate, and must he corrected, if. their conduct is not satisfactory, by the people electing a different board, except only where the neglect of duty or misconduct is such as calls for indictment and punishment.
But public education is a State, not a county, matter. The Constitution requires four months schooling, and the county commissioners are allowed no discretion. Indictment of the commissioners will give the child, whose life is passing, no compensation for its irreparable loss. Neither would the election of new commissioners a year or two later. Besides, there may be counties in which the popular majority would be unfavorable to a levy of taxation adequate for four months’ schooling. A bridge or a defective courthouse can wait. The child’s education cannot. With him,
“Dies fluunt et vita ir.reparaMKs.’’
“The days flow hy, and the years that can never be recalled.”
When the county commissioners refuse to levy the tax requisite to give the four months’ schooling guaranteed by the Constitution, the injury and wrong done is irreparable, unless the State can step in through its courts and promptly enforce its constitutional guarantee.
*128 Tbe statute does not contemplate that the estimate of the county board of education is conclusive as to the amount that the county commissioners shall levy, any more than that the estimate of the county commissioners is final. To hold the former might unduly burden the county. To accept the latter would destroy the constitutional guarantee of four months’ schooling. But when it is alleged by the county board of education that the sum fixed by the county commissioners is inadequate, the State, through its courts, should hear the matter at chambers, as in all cases of mandamus for other than a money demand, and, upon examination of the records and other proofs offered, determine the question. It is a matter of arithmetic and evidence, and far less.complicated than many questions the courts are called upon to decide. Only thus can the State maintain and enforce its educational system according to the Constitution.
Note — Immediately after filing- this opinion, the Legislature (of 19091, then in session, passed an act giving the county boards of education the right to sue out a mandamus in such cases: