Bruggeman v. Independent School Dist. No. 4, Union Tp., Mitchell County

• Decision Date: 12 December 1939
• Docket Number: 44915.
• Parties: BRUGGEMAN v. INDEPENDENT SCHOOL DIST. NO. 4, UNION TP., MITCHELL COUNTY.
• Court: Iowa Supreme Court

289 N.W. 5

227 Iowa 661

BRUGGEMAN v. INDEPENDENT SCHOOL DIST. NO. 4, UNION TP., MITCHELL COUNTY.

No. 44915.

Supreme Court of Iowa.

December 12, 1939

Appeal from District Court, Mitchell County; Henry N. Graven, Judge.

Plaintiff brought this action to recover the reasonable value of the transportation of his daughter to defendant's school from March 21, 1934, to June 1, 1937. Defendant filed a demurrer to the petition which was sustained. Plaintiff elected to stand on the ruling and the petition was dismissed at plaintiff's costs. Plaintiff appealed.

Affirmed.

Sullivan & Scholz, of New Hampton, for appellants.

W. H Salisbury, of Osage, for appellee.

STIGER, Justice.

Plaintiff alleged in his petition that he was a resident of defendant's school district. He further alleged:

" 2. That the daughter of the plaintiff, towit, Lucille Bruggeman, has attended school at the schoolhouse in the defendant school district from the 21st day of March, 1934 to the first day of June, 1937; that the distance from the home of the plaintiff to the said schoolhouse in the defendant district exceeds the distance of 2 1/2 miles and under the provisions of Section No. 4233-e4 of the 1935 Code of Iowa, this plaintiff is entitled to reimbursement from the defendant for the expense of the transportation of his daughter, Lucille Bruggemen, to the school in the defendant school district from the 21st day of March, 1934, to the first day of June, 1937.

3. That plaintiff has made demand upon the defendant for said transportation and that the defendant at all times has refused and neglected to provide for or arrange for the transportation of plaintiff's child.

4. That this plaintiff has transported his daughter to the school in the defendant district during the period hereinbefore stated and that the reasonable value of said transportation is the sum of $25.00 per month during each month of the school year.

5. That by reason of said facts the defendant is indebted to the plaintiff in the sum of $733.33."

Plaintiff filed an amendment to his petition alleging that he made a demand for transportation as set forth in paragraph 3 of his petition prior to the 21st day of March, 1934, and thereafter, and defendant refused and neglected to provide or arrange for transportation of plaintiff's child other than the transportation furnished by the plaintiff. The amendment further stated:

" 7. That plaintiff provided and furnished the said transportation with the knowledge of the defendant. 8. That said transportation was provided for under an implied contract between plaintiff and defendant to transport said child and that plaintiff would receive therefor the reasonable value of said transportation."

Code, Section 4233-e4, reads:

" 4233-e4. Transportation. When children enrolled in an elementary school other than in a consolidated district live two and one-half miles or more from the school in their district or subdistrict or when the school in their district or subdistrict has been closed and they are thereby placed more than two miles from the school designated for their attendance, the board shall arrange with any person outside the board for the transportation of such children to and from school and the cost of such transportation shall be paid from the general fund, but the board may provide transportation for a less distance."

I.

Appellant's first proposition is that though defendant is a quasi corporation, the statute imposed a mandatory duty on the board, and as nothing was left to the board's discretion, the mandatory duty to provide transportation was a ministerial rather than a governmental function.

Appellant states: " No discretion was left for the defendant other than to pay the cost of said transporation; they refused and plaintiff is therefore entitled to recovery in an action at law. Governmental exemption could not protect them from the said payment."

While the duty of defendant to provide transportation for pupils living 2 1/2 miles or more from the schoolhouse was mandatory, this duty was not a mere ministerial function as the transportation of pupils to and from school is a governmental function though the duty to transport is mandatory.

In the case of Kincaid v. Hardin County, 53 Iowa 430, loc. cit. 432, 5 N.W. 589, 590, 36 Am.Rep. 236, the court states:

" These latter political divisions [townships, counties and school districts] are called quasi corporations, and the general rule of law is now well settled, that no action can be maintained against corporations of this class by a private person for their neglect of public duty, unless such right of action is expressly given by statute.'* * * The ground upon which it is held that quasi corporations, such as counties, towns, school districts, and the like, are not liable for damages in actions of this character, is that they are involuntary, territorial, and political divisions of the state, created for governmental purposes, and that they give no assent to their creation."

In Shirkey v. Keokuk County, 225 Iowa 1159, 275 N.W. 706, 712, 281 N.W. 837, Justice Parsons, in an able and exhaustive review of the decisions of this court, states, in reference to non-contract liability of quasi corporations, that: " The absolution from liability of a county or school district does not rest upon this ground [governmental function]; it rests upon the ground that the county or school district is simply a quasi corporation and not clothed with full corporate powers, and it cannot be sued in cases of this character without regard to the question whether or not they are in the exercise of a governmental power or duty."

Assuming that this duty was a ministerial function, appellant has no cause of action against defendant based on its neglect and wrongful refusal to furnish free transportation for appellant's child.

II.

The claim of appellant that the demurrer admitted he provided the transportation under an implied contract with defendant is without merit. A demurrer does not admit the truth of a conclusion of law.

Implied contracts are implied in fact or implied in law. A meeting of the minds is as necessary to a contract implied in fact as to an express contract.

In Thompson Yards v. Haakinson & Beaty Co., 209 Iowa 985, 229 N.W. 266, 268, it is stated:

" To the existence of an implied contract there must be a meeting of the minds, agreement. The agreement, however, is shown by circumstances instead of by mutually expressed intent. The difference between implied and express contract is in method of proof."

There is no allegation in the petition that the defendant consented to, approved of or ratified the transportation furnished by appellant.

The mere knowledge by defendant that appellant was providing transportation was not a sufficient circumstance or conduct to warrant an inference that payment for the services was intended by the parties. Defendant was not in a position to reject the services of the appellant. No reasonable implication of a promise to pay appellant for transportation or that appellant reasonably expected compensation can be found in appellant's demand for transportation, defendant's refusal, or appellant's consequent transportation of his child with the knowledge of the defendant. We conclude that appellant cannot recover against defendant on a contract implied in fact.

III.

The remaining question for determination is whether appellant can recover under quasi contract or a contract implied in law. A quasi contract is not based on the intention or consent of the parties but is founded on considerations of justice and equity and often on the doctrine of unjust enrichment.

In the language of the trial court " the fundamental question involved in this case is whether where a governmental agency is charged with a mandatory governmental duty, may any one who is deemed to have that duty owing to him, after making demand upon such agency for the performance thereof, then proceed to perform such governmental function and then sue such agency at law for the reasonable cost of performing the same, or whether such person so aggrieved by such refusal is confined to the remedy of mandamus."

In Riecks v. Independent School District, 219 Iowa 101, 257 N.W. 546, 548, plaintiff brought an action to recover the reasonable value of services for the transportation of his children to the school in defendant's district. The only proposition on appeal was that appellee's sole remedy was by appeal from the decision of the school board to the county superintendent. The court left open the question of the right of plaintiff to maintain the action in the following language:

" Whether appellee without any form of contract or arrangement with the board may maintain an action at law to recover the alleged reasonable value of the services alleged to have been rendered is not, as we interpret the record, before us, and we, therefore, express no opinion thereon. The question is not raised by appellant's assignment. * * *

The duty of the school corporation in this case to provide transportation was clearly mandatory. Whether the action brought is a proper one, or whether any remedy was available to appellee, we need not at this time determine, but see Kruse v. Independent Sch. Dist., supra [209 Iowa 64, 227 N.W. 594]."

Kruse v. Independent School District, 209 Iowa 64, 227 N.W. 594, was an action of mandamus to compel directors of the school district to pay transportation and costs of transportation of plaintiff's children.

In Snethen v. Harrison County, 172 Iowa, 81, 152 N.W. 12, 13, the court quotes at length from the case of Soper v. Henry County, 26 Iowa 264. The quotation in part is as follows:

" Counties are involuntary political or civil divisions of the state,

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