Berry v. Sch. Bd. of Barrington

• Decision Date: 02 November 1915
• Citation: 95 A. 952
• Parties: BERRY v. SCHOOL BOARD OF BARRINGTON.
• Court: New Hampshire Supreme Court

95 A. 952

BERRY

v. SCHOOL BOARD OF BARRINGTON.

Supreme Court of New Hampshire. Strafford.

Nov. 2, 1915.

Transferred from Superior Court, Strafford County.

Petition by Norman J. Berry, for a writ of mandamus directed against the School Board of Barrington. Transferred from the Superior Court. Petition denied.

The court found that if on the facts hereinafter stated the defendants were bound, as matter of law, to furnish transportation for the plaintiff, the writ should issue, but otherwise it should be denied, and transferred the questions of law so raised.

The plaintiff lives one mile from the schoolhouse, and if well, could easily walk there, but he suffers from a physical infirmity which necessitates his transportation if he is to attend school. The defendants claim: (1) That since the distance from the plaintiff's home to the schoolhouse is not such as would require him to be transported if he were well, they are not required to transport him because of his physical inability to walk; (2) that if they were required to furnish transportation under such circumstances, there was no abuse of discretion in refusing to do so, because the necessary expenditure for that purpose would prevent the maintenance of school for a sufficient time to entitle the district to state aid, amounting to $134.

Pierce & Galloway, of Dover, for plaintiff. Felker & Gunnison, of Rochester, for defendants.

PARSONS, C. J. As the plaintiff's physical infirmity, and not the distance from his home to the schoolhouse, renders his transportation necessary, his case would be the same, however short the distance, if it were one which he was unable to walk. To entitle him to transportation as matter of law, it must therefore appear that the legislative intent in authorizing expenditure from the school fund for that purpose was to relieve unfortunate individuals in the plaintiff's situation at the expense of the remaining scholars, since the amount so expended would diminish to that amount the sum available for the general purposes of the district.

The first legislation authorizing such expenditure is found in chapter 55, Laws of 1878. Section 2 of that chapter empowered school districts to authorize the prudential committee—

"to use a part of the school money, * * * not exceeding ten per cent., for the conveyance to and from the school of pupils living more than one mile and a half from the school."

Section 3 made provision in districts having less than 12 scholars for their attendance upon the schools of adjoining districts, and authorized in such case the expenditure of the same percentage of the school money in the conveyance of scholars. Under this section the conveyance was a substitute for a school in the district, and under section 2 distance was the only rule given for the guidance of the committee. Scholars living more than one mile and a half from the schoolhouse might be transported at the expense of the school fund. Others living a less distance might not be. The physical capacity of the individual scholar to walk was not considered if he lived within the prescribed distance, nor is there a suggestion that distinction because of physical condition could be properly made between two scholars similarly situated,...