tion. Bangs v. Dworak, 75 Neb. 714, 106 N. [Ill. 482, 22 N. E. 596, 6 L. R. A. 161, observed W. 780, 5 L. R. A. (N. S.) 493; First Nat. that in that case: Bank v. Sarlls, 129 Ind. 201, 28 N. E. 434, 13 "The obstruction then existed in the highway. L. R. A. 481, 28 Am. St. Rep. 185. See, also, The mandate of the court was in reference to Kaufman v. Stein, 138 Ind. 49, 37 N. E. 333, rected. It was not necessary to supervise, genan existing condition. A specific act was di46 Am. St. Rep. 368. We do not think, how-erally, the official conduct of officers in referever, that the remedy by injunction in this ence to violations of the law which it was alcase is adequate. It was shown that petition-leged would take place in the future." er and others appeared before the board of See, also, Moores v. State, 71 Neb. 522, trustees of the village, and requested them 99 N. W. 249, 115 Am. St. Rep. 605. to prevent the erection of the building at a time when the structure was only partially erected, and that the village trustees refused to act. It was further shown that before the trial of the cause the building was completed. Injunction in the ordinary course of law is a preventive remedy, and in this case it is evident that injunction would not have secured the required relief, as the building was partially completed when the action was commenced.

It was further shown that the petitioner had erected a small outhouse on his premises in violation of the ordinance. In People v. Stover, supra, it was pointed out that in equity, if the plaintiff was also a violator of the ordinance, it would be ground for denying him equitable relief, but that this was no reason why he should be denied the remedy of mandamus.

By an action for injunction the relator would be seeking in a private action a remedy for his own private injury. The relief sought in the one case is not the same as that sought in the other. We do not think that because a private citizen may redress his private injury in a private suit, at law or in equity, he is thereby deprived of his right as a citizen to require public officials to perform a legal duty. For a discussion of principles somewhat analogous, see Goodell v. Woodbury, 71 N. H. 378, 52 Atl. 855.

The fact that certain details are left to the discretion of the authorities does not prevent relief by mandamus. Peotone, etc., Dist. v. Adams, 61 Ill. App. 435. Writs of mandate have been granted frequently to compel repairs and maintenance of bridges and highways where it appeared that the details were left to the discretion of the board of officers commanded to perform the duty. Brokaw v. Highway Com'rs, supra; Bigelow v. Brooks, 119 Mich. 208, 77 N. W. 810; State v. Com'rs, 39 Kan. 700, 18 Pac. 952; People v. Stover, supra; Inhabitants of Brunswick v. City of Bath, 90 Me. 479, 38 Atl. 532.

[6] Section 5 of the ordinance contains the following provision:

"Any building which is built in violation of any section of this ordinance, shall be immediately demolished or rebuilt to conform with the sections of this ordinance. It shall be the duty of the city marshal to see that this ordinance is enforced."

Appellants contend that the village did not have power to enact an ordinance providing for the demolition of a building erected in violation of its provisions. The statute under which the ordinance was passed provides that the village shall have power to "prescribe and alter the limits within which no building shall be constructed except of brick, stone or other incombustible material, with fireproof roof, and after such limits are [4, 5] It is contended that mandamus will established, no special permit shall be given not lie to compel the doing of any act which for the erection of buildings of combustible calls for the exercise of discretion in the do- material within said limits." While the stating of the act; nor to define the duties of an ute does not in express terms provide that a officer under the statutes and compel him to city or village may summarily destroy a perform such duties as defined; nor to com- building erected in violation of the provisions pel the performance by a public officer of his of an ordinance prescribing fire limits, we duties generally. State v. Darwin, 81 Wash. think such power is implied in order to make 1, 142 Pac. 441; State v. Brewer, 39 Wash. the ordinance effective. 28 Cyc. 741-743; 65, 80 Pac. 1001, 109 Am. St. Rep. 858, 4 Ann. Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Cas. 197; People v. Busse, 238 Ill. 593, 87 Rep. 830; Lemmon v. Guthrie, 113 Iowa, N. E. 840, 28 L. R. A. (N. S.) 246. This is not 36, 84 N. W. 986, 86 Am. St. Rep. 361; Micks such a case. This is not a case where there v. Mason, 145 Mich. 212, 108 N. W. 707, 11 is a threatened violation of the ordinance L. R. A. (N. S.) 653; McKibbin v. Ft. Smith, in the future, nor where the writ is sought 35 Ark. 352; Hine v. New Haven, 40 Conn. to compel the performance of official duties generally. This is a case of a building erected in violation of the village ordinance, and the existing and continued maintenance thereof in violation of the ordinance, and the writ is sought to compel the enforcement of the ordinance with reference to a specific violation thereof. It is a proper case for the exercise of the writ. In the case of People v. Busse, supra, the court in distinguishing erection of this building. The record is as the case of Brokaw v. Highway Com'rs, 130 follows:

478. We do not consider it important that the statute or ordinance does not in express terms declare a building erected in violation of such an ordinance to be a nuisance. Klingler v. Bickel, 117 Pa. 326, 11 Atl. 555.

[7] It was shown at the trial that, about the time the building complained of was being constructed, the trustees undertook to suspend the ordinance so as to permit the

(31 Idaho, 719)

"It was moved by Davis, and seconded by ! Small, that Ordinance No. 21, so far as lots 5, OREGON SHORT LINE R. CO. v. MINI6, 7, 8, 9 and 10, in block 20, are concerned, be repealed until further notice. Upon roll call the following trustees voted 'Aye': Case, Davis, Small, and Edwards. Absent: Stevens."

18 L. R. A. 590.

[8] It remains to determine the officers against whom the writ will run. It does not clearly appear that the appellant Allen was a police officer of the village. The allegation of petitioner is that he is the duly elected, qualified, and acting constable of the appellant corporation. The statute provides for the appointment of police officers. A serious objection to a writ issuing to a subordinate officer is pointed out in the case of Alger v. Seaver, 138 Mass. 331. The court held in the case of Conwell v. Village of Culdesac, 13 Idaho, 575, 92 Pac. 535, that a village police officer is removable at the pleasure of the board of trustees of a village. The board of trustees by removing the police officer might deprive him of his authority to act, and thus render the writ nugatory. Rev. Codes, § 2231, provides that the chairman of the board of trustees of the village shall cause the by-laws and ordinances thereof to be carried into effect. The chairman of the board is thus declared to be the executive officer of the village. Section 2223 provides that the corporate powers and duties of every village shall be vested in a board of trustees, to consist of five members. Section 2229 provides that the board of trustees of a village may appoint such night watch and police as may be necessary. Since the appointment and removal of ministerial officers is vested in the board, the writ should be directed to the board of trustees and to the

chairman thereof. The petition fails to designate the chairman of the board, and to that extent is insufficient.

The cause is remanded to the court below, with instructions to permit the relator to amend his petition by designating which of the village trustees is chairman, submitting proof of the fact, and the court is directed to amend the writ so that it shall be directed to the persons composing the board of trustees of the village and the chairman thereof, and to issue the peremptory writ as so amended. No costs awarded on this appeal.

DOKA COUNTY et al.
(Supreme Court of Idaho. Nov. 2, 1918.)

1. SCHOOLS AND SCHOOL DISTRICTS
-SPECIAL TAX-VALIDITY.

108(1)

The power and authority to levy and collect taxes is wholly statutory, and, where the purpose for which and the circumstances under which a special tax may be levied are expressly defined and limited by statute, the prerequisite circumstances must exist in order to give legal effect to a pretended tax levy for such purpose. 2. SCHOOLS AND SCHOOL DISTRICTS 108(1) -TAXES-MAINTENANCE OF GYMNASIUM,

to its amendment by chapter 59, Sess. Laws Chapter 14, Sess. Laws 1913, p. 53, prior 1917, p. 178, which authorized boards of trustees of independent school districts to purchase or otherwise acquire sites for playgrounds and gymnasiums, to equip and maintain the same, and to issue and sell bonds for such purposes, did not authorize the levying of a special school tax for the maintenance and care of a gymnasium and grounds, where no bonds were ever issued by the district for the purpose which said statute sought to provide for, and where such special school tax was in excess of and in addition to the maximum school taxes authorized by chapter 159, Sess. Laws 1913, p. 527, prior to its amendment by chapter 59, Sess. Laws 1917, p. 178.

Appeal from District Court, Minidoka County; James R. Bothwell, Judge.

Action by the Oregon Short Line Railroad Company against Minidoka County and others. Judgment for defendants, and plaintiff appeals. Reversed.

George H. Smith, of Salt Lake City, Utah, and H. B. Thompson, of Pocatello, for appel

lant.

Sweeley & Sweeley, of Twin Falls, for respondents.

BUDGE, C. J. This is an action to enjoin the collection of a portion of the taxes levied by respondent independent school district No. 1 of Minidoka county for the year 1915. The cause was tried by the court. Findings of fact and conclusions of law were filed, and a judgment entered dismissing the complaint and denying the injunction prayed for. This appeal is from the judgment.

It appears that the district, before becoming organized as an independent school district, issued bonds in the amount of $47,000, for the purpose of building a schoolhouse. With the proceeds of these bonds, the schoolhouse was built, and in connection therewith, and as a part of the same building, a gymnasium was partly equipped. Thereafter the district was organized into an independent school district, and in 1915 the board of trustees thereof levied an assessment aggregating 18 mills. The trial court found:

"That it was the intention of the board of trustees of independent school district to levy 10 mills for the payment of interest on the bonds and a sinking fund for the payment of the bonds at maturity and to provide funds for the maintenance of the schools in the district for nine months in the year; also, 4 mills to

BUDGE, C. J., and MORGAN, J., concur.

As a conclusion of law the court found:

"That the board of trustees of independent school district No. 1 has the right to make and levy for maintenance and care of a gymnasium and grounds, which, added to the levy made for all purposes, does not exceed 20 mills."

The specifications of error attack the latter finding.

maintain rural routes which were then being | ums," their authority to levy a special tax maintained by the district, and 4 mills for the therefor depended upon "the event of the ismaintenance and care of said gymnasium and grounds." suance of bonds as provided for in this section." The section provided for the issuance of no bonds except for playgrounds and gymnasium purposes, and no authority was conferred upon the board to levy a special tax where no such bonds had been issued. There is no finding that any bonds were ever issued, either before or after the organization of the district into an independent school district, to raise money for playgrounds or gymnasium purposes, and the evidence clearly negatives any issue for such purpose. The board, therefore, had no authority to levy a special tax in any amount for the maintenance and care of the gymnasium and grounds. The power and authority to levy and collect taxes is entirely statutory, and where the purpose for which, and the circumstances under which, a special tax may be levied, are expressly defined and limited by statute, the prerequisite circumstances must exist in order to give a pretended levy for the purpose legal effect, and where these circumstances are shown not to exist the levy is illegal and void.

Section 129 of the Code of Laws on Education, approved March 7, 1911 (Laws 1911, c. 159), as amended by chapter 159, Sess. Laws 1913, p. 527, prior to its amendment by chapter 59, Sess. Laws 1917, p. 178, defined the powers of the board of trustees of independent school districts. Subdivision 3 thereof was as follows:

"(3) To levy a special tax, if necessary, which when added to money apportioned by the county superintendent of schools, will be sufficient to provide funds for the maintenance of the schools for nine (9) months in each year; the special taxes levied by said board of trustees for the payment of interest on bonds and sinking fund, for payment of bonds at maturity, to gether with the levy for the maintenance of schools, shall not exceed ten (10) mills on the dollar of the assessed valuation of all property in the district: provided, that districts maintaining rural school routes, may levy a tax in addition to the aforesaid ten (10) mills sufficient to maintain the said rural school routes, said tax for school routes not to exceed four (4) mills."

By chapter 14, Sess. Laws 1913, p. 53, prior to its amendment by chapter 59, Sess. Laws 1917, p. 178, the boards of trustees of independent school districts were granted in addition to the powers then possessed by such boards the power:

"To purchase or otherwise acquire grounds or sites for playgrounds and gymnasiums and build and erect gymnasiums in their districts, either in connection with school buildings or as separate buildings; to equip and maintain all such playgrounds and gymnasiums with all necessary apparatus and fixtures; to issue and sell bonds in the manner as provided for by law to raise money for the purpose of buying such grounds, sites and building such gymnasiums and purchasing apparatus and fixtures therefor. Provided that in the event of the issuance of bonds as provided for in this section the board of trustees may levy for the proper maintenance and care of the gymnasium and grounds a special tax which together with all other taxes levied by such board shall not in any one year exceed twenty mills on the dollar. Section 1.

*

[1] It will be noticed that the board could issue and sell bonds in the manner provided by law to raise money for the purpose of buying grounds, building gynasiums, and purchasing apparatus and fixtures therefor, and, while they were authorized "to equip and maintain all such playgrounds and gymnasi

In Shoup v. Willis, 2 Idaho, 120, 6 Pac. 124, this court said:

es cannot be levied or collected at any other
"It is a well-settled principle of law that tax-
time, or in any manner, nor for any other pur-
pose, than that designed by law.
* * Stat-
utes authorizing the levy of special taxes should
beyond the clear import of the language em-
not be so construed as to extend their meaning
ployed."

[2] Respondents' contention that the words "as provided for," in the proviso in chapter 14, supra, should be construed to mean "for the purpose provided for," even if correct, does not obviate the difficulty, for, as above noted, no bonds were ever issued for the purpose which chapter 14, prior to its amendment, sought to provide for. The only bonds ever issued by the district, so far as relates to this case, were the $47,000 in bonds, sold for the purpose of building a schoolhouse.

However urgent the necessity or cogent the reasons may be for the levy in question, the board of trustees was, under the facts presented, and under the law then in force, without authority to make the levy.

The trial court should have enjoined the collection of the 4-mill levy for the maintenance and care of gymnasium and grounds. The judgment is reversed, and the cause remanded, with instructions to enter a judgment in accordance with the views herein expressed. Costs are awarded to appellant.

MORGAN and RICE, JJ., concur.

township 9 south, range 15 east of Boise and its occupation by another is deemed meridian, belonging to appellants, brought to have been in subordination to the legal this action, among other purposes, to quiet their title to, and to enjoin appellants from interfering with, the use of a ditch constructed across the land above described. Appellants filed an answer and cross-complaint, wherein they prayed that respondents be enjoined from interfering with their said property and for other relief.

title, unless it appears that it has been held and possessed adversely to such legal title for five years. Rev. Codes, § 4039. For such property to be deemed to have been held adversely, otherwise than by virtue of a written instrument, it must appear that there has been actual continued occupation of the land under a claim of title. Rev. Respondents' title to the land sought to Codes, § 4042. Where, as in this case, there be irrigated from the ditch was derived, by is no proof showing that actual occupation purchase in 1909, from one Heyl, who dug was accompanied by a claim, or an intention, the ditch in 1906, when appellants' land was inconsistent with the title of the owner, an unoccupied and unimproved. Water was adverse claim, based upon such occupation, taken through it at different times each cannot be allowed. Davis v. Devanney, 7 year until 1914, when the use thereof was Idaho, 742, 65 Pac. 500; Blake v. Shriver, interrupted by appellants. Respondents 27 Wash. 593, 68 Pac. 330; Yesler Estate claim title to the easement by adverse pos- v. Holmes, 39 Wash. 34, 80 Pac. 851; Peter session relying upon the use of the ditch by v. Stephens, 11 Mont. 115, 27 Pac. 403, 28 Heyl during the years 1907 and 1908, and by some parties who occupied a house upon their land and used the water for live stock and domestic purposes during the fall of 1909, and by their own use thereof during 1910, 1911, 1912, and 1913.

Heyl testified that he never claimed any right to, or interest in, the 80 acres of land above described; that he did not have, or claim to have, an easement across. it; that, had the owner of the land come along during the time he had a crop growing in the season of 1908, and told him to stop, he would have procured legal advice, and would have held possession of the ditch to protect his crops, if he could; that he did not know whether he had a right to use it or not, and, when asked if he claimed the right to use the ditch, he answered: "Well, I used

it."

The record discloses that Heyl's purpose in constructing this ditch was to procure water with which to grow crops upon his land in 1907 and 1908, in order that he might make proof and procure title to it pursuant to the "Carey Act" of Congress (Act Aug. 18, 1894, c. 301, § 4, 28 Stat. 422 [U. S. Comp. St. 1916, § 4685]) which he did, and in 1909 sold it, as above stated, to respondents.

It is conclusively established that Heyl neither had, nor claimed to have, a right founded upon a written instrument, or otherwise, to construct or use the ditch across appellants' land, that his occupancy was not adverse to the possession of the owners, and that he had no intention of initiating a hostile claim.

[1, 2] One who establishes his legal title to real estate, as appellants did in this case, is presumed to have been possessed of the property, within the meaning of Rev. Codes, §§ 4036 and 4037, wherein is provided the time within which actions to recover real estate must be commenced, and defenses arising out of title to such property must be made,

Am. St. Rep. 448; Harvey v. Tyler, 2 Wall. ·
328, 17 L. Ed. 871; Probst v. Presbyterian
Church, 129 U. S. 182, 9 Sup. Ct. 263, 32 L.
Ed. 642; Jasperson v. Scharnikow, 150 Fed.
571, 80 C. C. A. 373, 15 L. R. A. (N. S.) 1178;
Colvin v. Land Association, 23 Neb. 75, 36
N. W. 361, 8 Am. St. Rep. 114; McDaniel
v. Sloss-Sheffield, etc., Co., 152 Ala. 414, 44
South. 705, 126 Am. St. Rep. 48; Sommer
V. Compton, 52 Or. 173, 96 Pac. 124, 1065;
McDonald v. Fox, 20 Nev. 364, 22 Pac. 234;
Maple v. Stevenson, 122 Ind. 368, 23 N. E.

854.

[3] Since the occupancy of the land by Heyl was not with the intention upon his part, nor of a character, to initiate title by prescription, and since that of respondents was of shorter duration than required to establish their claim (Rev. Codes, § 4036), or defeat the title of appellants (Rev. Codes, § 4037), there is error in those portions of the findings of fact, conclusions of law, and decree which declare respondents to be the owners, and entitled to the possession of, and quieting their title to, the ditch described therein as running across the east half of the northeast quarter of section 33, 'township 9 south, range 15 east of the Boise meridian, and enjoining appellants from interfering with the use thereof.

with instructions to modify the findings of
This cause is remanded to the trial court,
cordance with the views herein expressed,
fact, conclusions of law, and decree, in ac-
so as to give appellants judgment, upon their
cross-complaint, restraining respondents from
interfering with their use and possession of
the land above described, and awarding
court, in such manner as, in the discretion of
costs, heretofore incurred in the district
the judge thereof, may appear to be just.
In all other respects the judgment appealed
from is affirmed.
awarded to appellants.
Costs upon appeal are

BUDGE, C. J., and RICE, J., concur.