Eastgate v. Osago School District

171 N.W. 96, 41 N.D. 518, 1919 N.D. LEXIS 83

• Court: North Dakota Supreme Court
• Decided: February 7, 1919
• Status: Published

Opinions

Grace, J.

Appeal from the district court of Nelson county, North Dakota, Honorable Charles M. Cooley, Judge.

This is an action by the plaintiff to recover the sum of $440 for conveying his children from his home to one of the schools of the district located at the village of Pekin in said district, during the school years of 1912, 1913, 1914, and 1915. The school is alleged to be a distance of 5 miles by the nearest route from the residence of the plaintiff. The plaintiff testifies there was a school 2 miles south of them, which was 3|- miles by the nearest traveled route.

The answer alleges that there was a school No. 2 in said district which was equipped with necessary furniture, heating apparatus, and other equipment, which is located by the nearest traveled route within 2 miles from the residence of the plaintiff, in which were taught all the subjects required to be taught in an elementary school; that the school in Pekin, which is mentioned in the complaint, is a district high school composed of the entire township of Osago, and is not a consolidated school. The answer further alleges that plaintiff arbitrarily and without cause or necessity and without the knowledge, consent, direction,T or approval of the defendant, except as to those attending high school, conveyed all of his children to and entered them in the Pekin school, and that during all of said time plaintiff well knew that defendant had made ample provision for the accommodation, teaching, and education of his said children who were at and during said time in the elementary grades in the elementary school No. 2. The answer further sets forth the number of days each of the children attended the school at Pekin during the different years hereinbefore referred to.

The questions presented in this appeal are few and simple. They are: 1. In the absence of a specific contract with the school board, may the plaintiff recover for the conveyance of his children to school, it appearing that they reside in a district where there is no consolidated school and at a distance from the school which entitles them to be conveyed thereto? 2. Does the right of such conveyance, under the conditions set forth in question 1, extend beyond the age of fifteen years ? 3. To what school should the conveyance, if any, be made ? The questions here presented arise under laws enacted for the compulsory attendance at school of children between the ages of six and fifteen, inclusive. It will also appear that during the time mentioned in the complaint, there were three different compulsory educational statutes in force. The first is subdivision 4 of § 232, chapter 263, of the Laws of 1911, the portion thereof which is germane to the issue here presented is as follows:

“If no school is taught the requisite length of time within 2-|- milés of the residence of such child by the nearest route, such attendance shall not be enforced except in cases of consolidated schools where transportation may be arranged by the school board; provided that in districts where children live beyond the 2J mile limit and school facilities are not otherwise provided, the district board shall provide transportation for such children to and from school.”

Section 232 was amended by the legislature of 1913 to read as follows: “If no school is taught the requisite length of time within 21-miles of the residence of such child by the nearest route, such attendance shall not be enforced except in cases of consolidated schools where the school board has arranged for the transportation of pupils. In every school district, where consolidated schools have not been established, the school board shall arrange a system of zones for the transportation of children to and from school at the expense of the district. Children living within not less than one and one quarter miles nor more than two and one quarter miles from the schoolhouse by the nearest public route shall be in zone number one; children living within not less than two and one quarter miles nor more than three and one quarter miles from the schoolhouse by the nearest public route shall be in zone number two; and children living at a greater distance than three and one quarter miles from the schoolhouse by the nearest public route shall be in zone number three. In providing compensation for transportation, the school hoard shall provide a maximum compensation per family for the first zone, and compensation per family for transportation from zone number two shall be one half greater per family than for zone number one, and compensation per family for zone number three shall be twice the compensation per family for zone number one. Provided that when provision has been made for the transportation of pupils by the school board of any district agreeably to the provisions of this chapter, the pupils residing therein shall be amenable to the provisions of law requiring the attendance at school of such pupils.” [Chap. 267, subd. 5.]

The same subject was again considered by the legislature in chapter 141 of the Session Laws of 1915, and the following law was enacted: “If no school is taught the requisite length of time within two and one quarter miles of the residence of such child by the nearest route, such attendance shall not be enforced except in cases of consolidated schools where the school board has arranged for the transportation of pupils. In school districts where consolidated schools have not been established, the school bear’d shall pay a sum not to exceed 35 cents nor less than 15 cents per day to any one family living more than two and one quarter miles from the nearest school, which shall be equitably based upon the number of children attending school from each family; provided that the tender of such daily compensation shall be construed as furnishing transportation, and when such tender is made by the school board, the compulsory attendance law shall apply to all children of school age living more than two and one quarter and not to exceed 5 miles from school.”

In some of the above laws, the words “nearest route” are used; where so used they are held to mean the nearest public route or one which lias been duly authorized or exists by law. The purpose of each of the above laws is to compel the parent or guardian, etc., to send to school children between the ages of six and fifteen. It does not under-. take to compel parents or guardians to send children to school who are past the age of fifteen years. Hence no recovery can be had by the plaintiff for conveying children to school who had passed the age of fifteen years at the time of such conveyance, nor would the school/board be warranted, under the present law nor other laws we have cited, in providing for the conveyance of children to school and payment therefor where they are past the age of fifteen years, in a district where there is no consolidated school. The plaintiff cannot recover for conveying any of the children to school who, at .the time of such conveyance, were past fifteen years of age. The defendant, if liable at all, was so only for the conveyance of the children between the ages of six and fifteen. If the plaintiff had a right to have his children up to the age of fifteen conveyed to any school it was the school which was nearest to him; that is, school No. 2. We have now arrived at the solution of the first question. In the absence of a specific contract with the board for the conveyance of his children under the age of fifteen to the nearest school under the circumstances we have mentioned, it appearing he did convey them, may the plaintiff recover? We are of the opinion that he may, his recovery to be based on the law in force at the time of the conveyance of such children over the age of six and under the age of fifteen years to the nearest school. Each of the above laws, making it the duty of the school board to provide conveyance for children living beyond the specified distance from the nearest school, is mandatory. It is the duty of the board to provide such conveyance. ■ It has no choice in the matter. It is the duty imposed upon it by the legislature, not only for the good and convenience of such children as come within its provisions, but also for the good of the state to the end that ignorance may be eradicated and the child developed into an intelligent and more useful citizen. With the exception of the Taws of 1911, the rates for transportation are provided for. It is the manifest duty of the school board, under each of said laws, to apprise itself of the number of children entitled to conveyance under any of the provisions of such laws. This is its plain duty. This being true, it failed to do its duty, the plaintiff, owing a high duty to his children and the state to educate his children, was justified in conveying them to the proper school, and should be entitled to recover within the limits prescribed by law for such conveyance for all children between the ages of six and fifteen years, such recovery to be had' under the law in force at the time of such conveyance. The conveyance should be made to the nearest school, if that school is one where all the elementary branches are taught and is a fit place for the children to attend, that is, if it is reasonably comfortable, provided with reasonably good furniture, and is a place, in all respects, which the children might attend without endangering their health. We think it might be shown that the nearest school was not properly equipped, not properly furnished, heated, nor lighted, and that it would be detrimental and dangerous to the health of the children to send them to such school, and where such showing is properly made by competent testimony and found to be true by the court, the plaintiff would have the right to convey such children to the next nearest school, which was in proper condition, within the district.

It is a well-established rule that school boards act as a unit; that individual members thereof have not the power to contract; that their contracts must be made at regular meetings or at a special meeting called for this specific purpose, etc. With all such rules and decisions we are in full accord. It is also a general rule that where the school board acts upon matters within its discretion and within its jurisdiction, as, for instance, in matters concerning the corporate property, such action being taken at a proper time and place and in the manner provided by law, the action of the school board will not be interfered with. Such matters, however, are entirely different than a total disregard by the board of a mandatory duty imposed upon it by law. In the case at bar, it was its mandatory duty, under the law in force at the time of the conveyance, to provide a conveyance for such children that were between the ages of six and fifteen for attendance at the nearest properly equipped school, and having failed in the performance of its mandatory duty, and the plaintiff, having conveyed his children to school, though not the nearest school, we think the plaintiff is entitled to recover in accordance with the law then in force for the conveyance of his children to the nearest school, unless it be shown by competent testimony that that school was not properly equipped and was not a fit place for tbe children to attend; and, in that event, then he to recover in accordance with law then in force for the conveyance of his children between the ages of six and fifteen to the next nearest school, in this case, the school to which he did convey them.

It is true that subdivision 4 of § 232, chapter 263, of the Laws of 1911, and the amendment to the same by the legislature of 1913, which provided for the zone system, are repealed by chapter 141 of the Session Laws of 1915, but they were, however, in force at the time plaintiff conveyed his children, over the age of six and under the age of fifteen years, to school. Their provisions in this regard were mandatory. Under the 1913 Laws, it was the mandatory duty of the school board to determine the zone. Under each of the laws to which we have referred, it was the mandatory duty of the board to furnish conveyance to children between the ages of six and fifteen years residing beyond the described point where it became the mandatory duty of the school board to provide such conveyance. If they failed to execute their mandatory duty as prescribed by law, one living beyond the point where the matter of conveyance became operative, and having children between the ages of six and fifteen years of which he was a parent or guardian, etc., could convey such children to the nearest properly equipped school, both with facilities as to education and health condition, and recover from the defendant for such conveyance within the terms specified in the respective laws to which we have referred.

The case is remanded for further proceedings in harmony with this opinion. Appellant is allowed the statutory costs on appeal.