Collins v. Ritchie

• Decision Date: 09 December 1986
• Docket Number: No. 17304,17304
• Citation: 351 S.E.2d 416,177 W.Va. 229
• Court: West Virginia Supreme Court
• Parties: , 36 Ed. Law Rep. 1002 Louise COLLINS, etc., et al. v. William S. RITCHIE, Commr., etc., WVDOH, et al.

Page 416

351 S.E.2d 416

177 W.Va. 229, 36 Ed. Law Rep. 1002

Louise COLLINS, etc., et al. v. William S. RITCHIE, Commr., etc., WVDOH, et al.

No. 17304.

Supreme Court of Appeals of

West Virginia.

Dec. 9, 1986.

Syllabus by the Court

" 'The mandatory requirements of "a thorough and efficient system of free schools" found in Article XII, Section 1 of the West Virginia Constitution, make education a fundamental, constitutional right in this State.' Syl. pt. 3, Pauley v. Kelly, W.Va., 255 S.E.2d 859 (1979)." Syllabus Point 1, Potter v. Miller, --- W.Va. ----, 287 S.E.2d 163 (1981).

Daniel F. Hedges, Charleston, for appellant.

Joseph G. Martorella, Huntington, for DOH.

Lloyd Jackson, Hamlin, for Lincoln Co. Board of Education.

PER CURIAM.

This civil action was instituted by Louise Collins, individually and on behalf of her children, Frank and Patience Collins, and Lelia Vance, individually and on behalf of her son, Adam Cochran, against the Commissioner of the West Virginia Department of Highways and the Lincoln County Board of Education. The purpose of the suit which sought both mandamus and injunctive relief was to secure transportation for the appellants' children to and from the public schools in the county and also for the other thirteen children residing on Sand Creek Hollow Road in Lincoln County.

Following an evidentiary hearing on August 6, 1986, the circuit court ruled that the Lincoln County Board of Education must provide transportation to the children to and from their residences, but that the Department of Highways was under no duty to maintain or conduct even routine maintenance on Sand Creek Hollow Road so that a school bus could traverse the road. The appellants appeal from the court's final order.

Sand Creek Hollow Road is a two-mile road in the southern part of Lincoln County near Harts, West Virginia. The road is designated Delta 47 and begins at State Route 10/15. It ends at a right-of-way owned by the Chessie System. There is a one and a half to two lane limestone-based road that runs beside the CSX Railroad Line and the Guyandotte River for approximately three miles from Harts to the mouth of the Sand Creek Hollow Road. Near the mouth of the hollow, Sand Creek runs into the river; at this point the road is a dirt road that dips into Sand Creek close to the mouth of the hollow, then traverses the creek four or five times until it reaches the source of the creek, approximately two miles from the mouth. The road then crosses the mountain on a steep grade and ends on State Route 10.

The appellants' children and the other school children on the road live along the first mile and a quarter of Sand Creek Hollow Road near the mouth of the hollow where the creek runs into the river. Evidence adduced at the hearing in the circuit court showed that during the last three years the sixteen elementary and kindergarten school children living on the road have been exposed to numerous hazards on their way to school because of the lack of bus transportation. One of the appellants, Louise Collins, whose truck had no license plate and who, herself, had no driver's license, drove some of the children to school. On occasion, there were as many as ten in the cab of the truck because it was too cold for the children to ride in the back. After the children were driven out of the hollow they had to walk across an abandoned swinging bridge that crosses the Guyandotte River. In addition, they must cross a railroad track on which coal trains are routinely parked waiting for clearance. Mrs. Collins testified that on occasion the children were forced to crawl under the trains to reach the other side.

There was also evidence that the pickup truck used to transport the children would occasionally get stuck in the creek and have to be pushed out by the children which caused them to attend school with wet feet. Too, there was testimony that when the Guyandotte River is high, which is approximately ten to fifteen school days a year, a regular vehicle is unable to travel the road at the mouth of the hollow because the road is covered with up to three feet of water. Mrs. Collins testified that her pickup truck is no longer in working order, and that she does not own any other vehicle.

In its findings of fact, the circuit court found that the appellants' children had been late or missed school entirely on several occasions during the school year and that when transportation is not provided by the Board of Education the children are subject to peculiar hazards, "including danger due to the hazardous nature of the bridge, danger from trains while crossing the railroad tracks, danger from vehicles while walking along Route 10, and the inability to safely walk out of Sand Creek Hollow." Based on its findings, the court ordered the Lincoln County Board of Education immediately to provide transportation to each...