delivered the opinion of the court:

This is an application on the part of the petitioners—John M. McTeer, Henry E. Me Wane and Paschal Buford—who claim to be the legal and rightful school trustees for Evansham school district, in Wythe county, Virginia, for a peremptory writ of mandamus to compel John H. Caldwell, Charles L. Fox and Thomas J. Newman, who are now acting as school trustees for that school district, to transfer and deliver to them all the books, records, papers, and property belonging to that school district.

In their petition they allege that they wei’e appointed school trustees of Evansham district by the “board of education” of Virginia; that they have been duly commissioned by the governor, and have qualified to their commissions; and then they proceed to set forth various matters going to show that the said Caldwell, Fox and Newman are mere usurpers, which, in the view we take of the case, it is not necessary to mention.

To this petition the respondents—Caldwell, Fox and Newman—demur, and this demurrer raises the question whether the *598petitioners are the legal and rightful school trustees for said school district. That this (Evansham school district) is not a city of the first or second class, mentioned in section two of chapter seventy-nine of the Oode of 1873, seems too plain to need discussion. It must, therefore, be a mere school district in a county, such as are in all the counties of the state, or it may he a separate school district, such as is contemplated by the act of assembly approved February 13, 1877, entitled “an act to amend and reenact section thirty-six, chapter seventy-eight, Oode of 1873, in relation to the appointment of school trustees in incorporated towns of less than five thousand inhabitants.” Acts 1876-77, chapter eighty-six, page sixty-nine.

Now, prior to January 11, 1877, the duty of appointing and removing district school trustees was, by the express terms of the fourth clause of the seventh section of chapter seventy-eight, Oode 1873, devolved upon the state hoard of education. But as is pointed out in the opinion of Bichardson, J., in the case of Childrey and others v. Rady and others, ante page 518, and familiarly known as the “Bichmond School Case,” this power was taken away from the board of education by an act passed on that day, and entitled “ an act to provide for the appointment and removal of district school trustees, and to repeal the fourth clause of the seventh section of the seventy-eighth chapter of the Code of 1873,” Acts 1876-77, chapter twelve, page nine, and vested in a hoard to be known as “TheSchool Trustee Electoral Board,” to he composed of the county superintendent of schools, the county judge, and the attorney for the commonwealth in each county. So that, if Evansham school district he regarded not as a separate school district, such as is contemplated by the act of assembly approved February 13, 1877, but as a mere ordinary county school district, then the' petitioners, not being appointees of the “School Trustee Electoral Board,” have no title to the offices which they claim.

And if on the other hand this Evansham school district he considered as a separate school district, within the purview of *599the aforesaid act of assembly, approved February 13, 1871, then by the provisions of that act the town council of Wytheville alone has power to appoint the school trustees for such district.

Eow there is no pretence that the petitioners received their appointments from either of these sources, on the contrary, it is distinctly averred that they were appointed by the hoard of education. It is clear, therefore, that they are not the legal school trustees for Evansham school district, and are not therefore entitled to the care and custody of the school property of the district.

The demurrer to the petition must therefore he sustained, the rule heretofore awarded in this case be discharged, and the petition he dismissed.

Mandamus denied.