Page:North Dakota Reports (vol. 48).pdf/751

 playground of said nuisance, of which the defendant was in duty bound to take notice and abate, but which, on the contrary, it allowed and permitted to remain for several weeks prior to and on the 1st day of December, 1920, which was a great risk and hazard and mortal danger to the 500 children; that plaintiff is a widow, 42 years of age, with three living daughters, ages respectively 15, 9, and 6 years, who are wholly dependent upon the plaintiff for their education, care, and support; that her son, the deceased, in addition to his school and domestic tasks, was at the time of his death, and for some time prior thereto, earning and contributing about $20 per month toward the support of himself, the plaintiff, and the three sisters, and was likely to be, and was, the sole person upon whom plaintiff depended, and was likely to depend, for assistance for her own and daughters' support; that plaintiff was damaged in the sum of $200 expended for burial expenses and for a physician called when the said son was killed, and has sustained further damages by reason of the death of her son in the sum of $25,000.

Defendant demurred to the complaint. One of the grounds of demurrer was that the complaint does not state facts constituting a cause of action against the defendant. If it appear plainly from the face of the complaint the plaintiff has no cause of action against the defendant, then there was no error in the order of the court sustaining the demurrer.

It will be observed that the plaintiff has pleaded the act of March 4, 1885, providing for a board of education for the city of Fargo, and the amendatory act thereof, approved February 2, 1915. If it should appear from these that the board of education of the city of Fargo is a distinct corporate entity from the municipal corporation of the city of Fargo, and that the former has control and dominion over all the schools of Fargo, including the school buildings, school grounds, and school playgrounds, all school apparatus, the right to buy or sell school property, the right to issue bonds for school purposes, and the right to sue and be sued, and this free and clear from any right of interference by the city of Fargo, then we think that it must be clear that, if the plaintiff has any cause of action, it is not one against the city of Fargo; we think the complaint on its face so shows, and hence it does not state facts sufficient to constitute a cause of action. Ample support of this conclusion is contained in the act providing for the board of education. Section 7 thereof is as follows:

"The board of education shall be a body corporate in relation to all