tiff's demands. Of course, if the trustees had refused to act at all, instead of refusing to act in a particular way, or in doing a particular thing, the case might be different.

Upon the question of how and under what circumstances courts ought to grant the writ of mandate against public officers, the law is well and tersely stated by Mr. High in his excellent work entitled High's Extraordinary Legal Remedies (3d Ed.), section 32, in the following language:

1

"And, to warrant a court in granting the writ against a public officer, such a state of facts must be presented as to show that the relator has a clear right to the performance of the thing demanded, and that a corresponding duty rests upon the officer to perform that particular thing. And when substantial doubt exists as to the duty whose performance it is sought to coerce or as to the right or power of the officer to perform such duty, the relief will be withheld."

Where there is a discretion vested in the officer, the rule generally applied is stated by the author in section 41 of Merrill on Mandamus in the following words:

"But the action of an officer in a matter which calls for the exercise of his discretion or judgment will not be reviewed by the writ of mandamus unless he has been guilty of a clear and 2 willful disregard of his duty, or such action is shown to be extremely wrong or flagrantly improper and unjust, so that the decision can only be explained as the result of caprice, passion or partiality.”

In speaking of the general rule which is ordinarily applied by the courts in passing on the question whether the writ should be granted or withheld, Wood on Mandamus, etc., at page 51 of his work, says: "And generally it may be said that a mandamus will not be issued unless the duty it is sought to enforce is a legal duty, clear and free from doubt, and the right of the party seeking redress through this summary remedy is equally clear."

In view of the facts stated in the petition when applied to the provisions of our statutes to which we have referred, and in the light of the law as contained in the foregoing

quotations, can we say that it is clearly the legal duty of the defendants to comply with the demands of the petitioner? Again, if in our judgment as reasonable men the defendants, under the conditions stated in the petition, should have continued to hold a term of school in each one of the divisions, or in any two of them, is their refusal to do so, in view of all the facts and circumstances, of that character as will make such refusal "extremely wrong, or flagrantly improper and unjust?" And, further, can it be in reason said that their refusal is clearly "the result of caprice, passion, or partiality?" The conditions confronting defendants were, to say the least, extraordinary, if not unique. In our judg ment it requires but slight reflection to perceive that in view of all the circumstances different men equally honest and equally desirous of discharging their duty might nevertheless arrive at different conclusions with respect to what was the best, if not the wisest, course, to pursue in maintaining a school in a district situated like the Fish Springs District. Here are three settlements situated upon a desert. All three must unite in order to have the legal number of pupils to authorize the organization and maintenance of a school. One of these settlements, Callao, has at least as many pupils of school age as the other two combined, if not more. Each one of the settlements is so far distant from the other that the children in any one cannot attend school in either of the other settlements. The number of pupils in the smallest settlement, Ragan, is not shown, but it was conceded at the hearing to be a small number, perhaps not to exceed there. In Trout Creek division, which is the next in order with respect to the number of pupils, it is alleged that "at the time" of the application the number in that division was nine. The manner in which this statement was made is significant, for the reason that in the first petition the number was not stated with any degree of certainty, and the Attorney General objected upon that ground. The petitioner then amended his statement, and in the amended statement the qualification is made as above stated. From this statement it cannot be determined with certainty

how long there have been nine pupils in Trout Creek, nor how long that number will probably remain therein. As we have seen, the trustees may discontinue a school if the "average attendance of pupils therein for twenty consecutive days shall be less than eight." If the trustees, therefore, may legally discontinue a school in an entire district when there are less than that number of pupils attending school therein, how can the trustees be compelled to provide a school in an independent settlement of a district, unless it is clearly made to appear that there will be at least the average number of pupils required by the statute that will attend the proposed school? In the other division, as we have seen, the number of pupils is conceded to be below the statutory requirement. If it be assumed that in case a school district is divided like the Fish Springs district, the courts may, by mandamus, require the trustees of the district to provide a school in each division if the number of pupils in each comes up to the statutory requirement; yet, in view that a school may be discontinued unless that number of pupils do attend, how can it be said that it is the legal duty of the trustees in this case to provide a school for each division of the district, or for two divisions, when it is conceded that in one of the divisions the number is less than the statute requires and in the other the question, to say the least, is left in doubt? Moreover, the statutory requirement that the trustees "shall arrange such terms as to accommodate and furnish school privileges equally and equitably to pupils of school age” cannot be given literal application. This provision was intended to apply to ordinary school districts, when conducted under normal conditions. In the ratio that we depart from such conditions, in that ratio must the good judgment and sound discretion of the trustees in conducting the school be given force and effect. It is obvious that under such conditions absolute equality with respect to school facilities is an impossibility. Indeed, that ideal standard can only be approached under normal conditions. When the pupils can and do attend school, no doubt they must be given equal privileges in the school, and, where it is a large district and

there are young pupils, the terms of school, in a rigorous. winter climate, should be so regulated as to afford those of tender years as well as the older ones an opportunity to attend school by keeping a summer as well as a winter term in the district. In this regard much must be left to the sound discretion and judgment of the trustees on whom the duty to regulate such matters is placed. Courts should not interfere by mandamus unless it is clear that the school trustees are refusing to discharge a plain legal duty or that they are arbitrarily, capriciously, or unjustly refusing to exercise their powers to the injury of a complainant. Assuming, therefore, that all of the facts well pleaded in the petition are true, as we must do, yet we are clearly of the opinion that they are insufficient to authorize us to interfere, and thus control the defendants in their judgment 3 of what should be done in the premises.

We remark in closing that no doubt the petitioner, and others similarly situated, if practicable, should be provided with school facilities for their children, if for no other reason than that, if the children are deprived of the advantages of education, they may suffer irreparable injury, while their parents are denied the ordinary rights of taxpayers. To prevent such results, the law has wisely placed the arrangement for and the conduct of district schools in the hands of local officers who are on the ground, and, as a general rule, are both taxpayers and patrons of the school, and thus they usually possess both the opportunity and the inclination to do what is best for all concerned under all circumstances. While the control of these officers is not absolute, yet courts should be slow in interfering with their management of the schools, lest long range interference might result in greater injustice than that which the courts are seeking to cure.

From what has been said it follows that the demurrer ought to be, and it accordingly is, sustained; and, in view that the defects in the petition cannot be cured by further amendment, the application is hereby dismissed.

STRAUP, C. J., and MCCARTY, J., concur.

38 Utah-16

STATE ex rel. SKEEN v. OGDEN RAPID TRANSIT COMPANY.

No. 2172. Decided November 25, 1910 (112 Pac. 120).

1. RAILROADS-DUTIES TO STOP TO RECEIVE AND DISCHARGE PASSENGERS-STATUTES. The duties imposed on carriers by Comp. Laws 1907, section 449, requiring every railroad to furnish sufficient accommodations for the transportation of persons and property at any station or stopping place established for receiving and discharging passengers and freight, must be discharged by a carrier at depots or stopping places duly established, and it does not require a carrier to stop its cars at any particular place to discharge or receive passengers. (Page 250.)

2. RAILROADS-DUTIES TO ESTABLISH STATIONS-POWER OF COURTS, The statutes do not confer on the courts power to determine whether a carrier should or should not establish and maintain a depot or stopping place for the reception and discharge of passengers or freight, or either, at any particular place or places along its line of road. (Page 250.)

3. MANDAMUS-PERFORMANCE OF COMMON-LAW DUTY. Where the common law imposes on a person a duty and the right of another to require performance thereof is clear and reasonably free from doubt, mandamus lies to compel such person to discharge that duty. (Page 251.)

4. RAILROADS-REGULATION-DEPOTS. The Legislature may, within limits, direct where a carrier shall maintain depots or stopping places for the convenience of the public, and it may require a carrier to stop its trains or some of them at such depots, or stopping places, or it may confer the power to determine whether a carrier shall do so on some board, and, in either case, the courts may coerce a defaulting carrier by mandamus to comply with the legislative edict or with an order of the board. (Page 251.)

5. RAILROADS-REGULATION-DEPOTS. Under ordinary circumstances, no inherent power is vested in the courts to control a carrier in its determination of the number of depots or stopping places that it will establish or maintain, or in the selection of the places where it will establish and maintain them along its line of railroad, but the matter is for legislative regulation. (Page 253.)

6. CARRIERS-REGULATION-DISCRIMINATION.

The courts may pre

vent discrimination by a carrier. (Page 253.)