Eastgate v. Osago Sch. Dist. of Nelson Cnty.
| Decision Date | 07 February 1919 |
| Citation | 171 N.W. 96,41 N.D. 518 |
| Parties | EASTGATE v. OSAGO SCHOOL DIST. OF NELSON COUNTY. |
| Court | North Dakota Supreme Court |
Where a statutory law imposes upon school boards the mandatory duty of requiring each child between the ages of 6 and 15 years of age to attend the public school for a specified time during each school year, and in that respect imposes a further mandatory duty upon the school board requiring it to provide transportation to the school for all children between the ages of 6 and 15 years of age inclusive, who reside beyond the specified distance as prescribed by law, when it becomes the mandatory duty of the school board to provide conveyance for such children to such school, it is the mandatory duty of the school board to ascertain and determine what children within the district reside beyond such specified distance from the school and convey them to school in accordance with the requirement of the law providing for such transportation.
Where the school board fails, neglects, or refuses to furnish transportation for children between the ages of 6 and 15 years, inclusive, in disregard of the provisions of law which make it their mandatory duty to do so, and where the parent or guardian or one lawfully charged with the custody and care of such children conveys them to the nearest properly equipped school within the district by the nearest public or lawfully traveled route, such service being accepted by the school district, the district is under an implied contractual obligation to compensate therefor.
The words “nearest route,” as used in Laws 1911, c. 266, § 232, subd. 4, Laws 1913, c. 267, and Comp. Laws 1913, § 1342, as amended and re-enacted by Laws 1915, c. 141, relating to transportation of pupils living a certain distance from schools by the nearest route, mean the nearest public route, or one which has been duly authorized or exists by law.
Appeal from District Court, Nelson County; Chas. M. Cooley, Judge.
Action by Alfred Eastgate against the Osago School District of Nelson County. Judgment for defendant, and plaintiff appeals. Remanded.
R. J. Roberts and Frick & Kelly, all of Lakota, for respondent.
Appeal from the district court of Nelson county, North Dakota; Hon. 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 1/4 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, 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 15 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 6 and 15, 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 section 232, chapter 266, 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 two and one-half miles 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 the children live beyond the two and one-half 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 (Laws 1913, c. 267) to read as follows:
The same subject was again considered by the Legislature in chapter 141 of the Session Laws of 1915, and the following law was enacted:
[1][2][3] 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 has 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 6 and 15. It does not undertake to compel parents or guardians to send children to school who are past the age of 15 years. Hence no recovery can be had by the plaintiff for conveying children to school who had passed the age of 15 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 15 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 15 years of age. The defendant, if liable at all, was so only for the conveyance of the children between the ages of 6 and 15. If the plaintiff had a right to have his children up to the age of 15 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 15 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...
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- Eastgate v. Osago School Dist. of Nelson County
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Henderson v. Long Creek School Dist. No. 2 of Divide County
... ... Neither is the case parallel with that of ... Eastgate v. Osago School Dist. ante, 518, 171 N.W ... 96, recently ... ...
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Peterson v. School District No. 68, Lincoln County
... ... 57 S.D. 586, 234 N.W. 527, and Eastgate v. Osago School ... District, 41 N.D. 518, 171 ... ...
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Bruggeman v. Independent School Dist. No. 4, Union Tp., Mitchell County
...171 N.W. 96 and Sommers v. Board of Education, 113 Ohio St. 177, 148 N.E. 682, support appellant's contention. It will be observed in the Eastgate case that judge who wrote the opinion cites no cases to support it. Two other judges concur in the result and in a concurring opinion cite cases......