Davis v. Boget

Rothrock, Ch. I.

I. In addition to the foregoing statement it may be proper to say that it was stipulated by the parties in the court below that the school-house in sub-district. No. 1 cost that district about two hundred dollars, in addition to its proportionate share of the cost of the house, and that a-small majority of the electors of the sub-district are opposed to the use of the house for religious worship.

In our opinion these facts cannot control the legal rights of' the parties, and they must be regarded merely as accounting for what would otherwise seem as an unreasonable refusal of the defendant Boget to carry out the wishes of a majority of the electors of ,the district township.

*14 It is insisted by counsel for appellant that the action of mandamus will not lie because the act required to be performed is not one which the law enjoins, as a duty resulting from an office, trust or station, as provided in section 3373 of the Code. This would no doubt be correct if the electors of the township had not the power to determine that the schoolhouse might at proper times be used for religious meetings and Sabbath schools. If the electors have such power, then the duty of the directors to open the houses for these purposes is as clearly enjoined by law as though expressly provided by statute, and the action of mandamus will lie.

trictfuse of school-house. II. It appears from the record before us that the electors of the district township, by a resolution duly adopted at a regular meeting, placed the control of the schoolhouse in question in the board of district township directors, ana ordered that it should be opened for Sabbath school, religious worship, and lectures on moral and scientific subjects, at such times as would not interfere with the regular progress of the public schools. It also appears that this action was taken because the sub-director of the sub-district in question had refused to allow the house to be used for the purposes named.

The main question in the case, then, is, did the district township electors have the legal power to direct the house to be used for the purposes aforesaid ?

We cannot regard this as an open question in this State. In Townsend v. Hagan et al., 35 Iowa, 194 , it was held that the statute confers authority on the electors of the district, when legally assembled, “to direct the sale or other disposition to be made of any school-house,” and that the sub-director shall have the control and management of the schoolhouse in his sub-district, unless otherwise ordered by a vote of the district township meeting; and that when the electors of the township, by a direct vote, determined that the schoolhouses should be opened for religious worship and Sabbath schools, such order was valid, and was such a disposition of *15 the house as “might lawfully be made. This decision was made in the year 1872. It is founded upon a construction of chapter 172 of the Laws of 1862. The same provisions are contained in sections 1717 and 1753 of the Code. In view of the fact that the statute construed in the case cited has been re-enacted by the General Assembly since that decision was made, and presumably with a knowledge of the construction put upon it by this court, we are not disposed to disturb the ruling in that ease.

•2. — _—: law. III. It is next insisted that, notwithstanding such use of the house in question may be authorized under the construction of the statute in Townsend v. Hagan, supra, yet that such use is in conflict with section 3, article 1 of the Constitution of this State, which provides that “the General Assembly shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; nor shall any person be compelled to pay tithes, taxes, or other rates for building or repairing places of worship, or the maintenance of any minister or ministry.”

It is argued that the permanent use of a public schoolhouse for religious worship is indirectly compelling the taxpayer to pay taxes for the building or repairing of places of worship.

Aside from the consideration that in Townsend v. Hagan, supra, it was determined that the district electors did have such power as is here complained of, and that such use was not unreasonable, we incline to think that the use of a public school building for Sabbath schools, religious meetings, debating clubs, temperance meetings and the like, and which, of necessity, must be occasional and temporary, is not so palpably a violation of the fundamental law as to justify the courts in interfering. Especially is this so where, as in the case at bar, abundant provision is made for securing any damages which the tax-payer may suffer by reason of the use of the house for the purposes named. With such precaution the *16 amount of taxes any one would be compelled to pay by reason of such use would never amount to any appreciable sum.

We may further say that the use for the purposes named is but temporary, occasional, and liable at any time to be denied by the district electors, and such occasional use does not convert the school-house into a building for worship, within the-meaning of the constitution. The same reasoning would make our halls of legislation places of worship, because in them, each morning, prayers are offered by chaplains.

Counsel for appellant have cited some cases which seem to hold a different rule from that here announced. We need not refer to them, in view of the construction placed upon our statute in Townsend v. Hagan, supra, and with which we are content.

Affirmed.