Ex parte Perry County Bd. of Ed.

• Decision Date: 18 November 1965
• Docket Number: 2 Div. 480
• Citation: 278 Ala. 646,180 So.2d 246
• Parties: Ex parte PERRY COUNTY BOARD OF EDUCATION et al.
• Court: Alabama Supreme Court

Page 246

180 So.2d 246

278 Ala. 646

Ex parte PERRY COUNTY BOARD OF EDUCATION et al.

2 Div. 480.

Supreme Court of Alabama.

Nov. 18, 1965.

Goodwyn & Smith, Montgomery, for petitioner.

Pitts & Pitts, Selma, for respondent.

HARWOOD, Justice.

Prior to 1965, the Perry County Board of Education had operated all of the schools in Perry County.

In January 1965, the City of Marion, in Perry County, established its own educational system, appointed a City Board of Education and by resolution of the City Council transferred to the jurisdiction of the Board of Education of the City of Marion the public schools within the City of Marion. This action was pursuant to the provisions of Title 52, Section 148 et seq., as amended. Thereafter the State Department of Education transferred the schools' plants and properties in the City of Marion to the jurisdiction of the Marion City Board of Education.

During the summer of 1965, the complainants who are parents of children living in northwest Perry County began contacting the Perry County Board of Education as to what arrangements were to be made for transporting children living in the northwest area of the county to schools, the children having theretofore attended the schools in the City of Marion. Finally on 27 August 1965, some three days before the opening day of the schools on 31 August 1965, the Perry County Board of Education notified the parents of the children living in the above mentioned area of Perry County that the County Board would not transport children on county busses to the schools in the City of Marion which was then under the jurisdiction of the City of Marion Board of Education.

On 12 September 1965, the complainants, who are parents of children who previously had attended schools in Marion, and who lived in northwest Perry County, filed a bill against the Perry County Board of Education and the County Superintendent of Education, and the Board of Education of the City of Marion, and the Superintendent of Schools for the City of Marion. The bill sought an injunction, a temporary injunction, and a declaratory judgment to order the Perry County Board of Education to provide transportation to schools in the City of Marion for children living in northwest Perry County who had attended schools in the City of Marion in the school year 1964-1965.

The bill, after setting forth certain facts in detail avers that the 'arrangement of transportation worked out by the Perry County Board of Education is unreasonable, unjust, unfair, and discriminatory as it pertains to the children who reside in said area and places an undue burden upon said children and their parents.' We note that the transportation arrangement complained of provides for transportation of children living outside in City of Marion to schools operated by the County Board of Education only.

After a hearing the lower court issued a temporary injunction by the terms of which the Perry County Board of Education and the Perry County Superintendent of Education were separately and severally enjoined:

'1. To transport in school busses the Complainants' children and the children of members of the class similarly situated with the Complainants to and from schools in the City of Marion to and from places in Perry County outside the corporate limits of the City of Marion.

'2. Not to transport or require the transportation of said children from the area in which they live and in which the Complainants reside to Suttle, Alabama and/or Heiberger, Alabama.

'3. To map out and prescribe a route or routes for school busses and a schedule therefor wherein and whereby the children of the Complainants and the children of members of a class of persons similarly situated and residing in Perry County can be transported to and from schools in the City of Marion from points and places outside of the corporate limits of the City of Marion, which said schedule or routes shall not be unreasonable in time or places of departure or arrival so that it would make it impracticable for the children of the Complainants or persons similarly situated to attend the schools in the City of Marion.

'4. Said injunction shall include all students residing in the Sections of Perry County, Ala. from which said School Board transported children to the School in the City of Marion during the preceding school year.

This temporary injunction shall become effective at 12:01 A.M. Monday September 13, 1965.'

On 13 September 1965 the Perry County Board of Education and the Perry County Superintendent of Education petitioned this court for a writ of Prohibition and that a rule nisi be issued to Hon. L. S. Moore, Judge of the Circuit Court of Perry County in Equity directing him to show cause why he should not be prohibited from proceeding further in said cause.

On 15 September 1965, this court issued the rule nisi as prayed, returnable within thirty days. The order thus issued further stated:

'This court being in doubt as to the equity of the bill of complaint, and in view of the unusual circumstances, it is ordered that the temporary injunction shall not be enforced prior to a final determination of the cause by this court, and it is therefore stayed pending such final determination.'

Judge Moore duly filed his answer to the rule nisi, attaching to said answer a copy of the transcript of the evidence taken at the hearing.

Among the matters set forth in Judge Moore's answer, and pertinent, to this review, are the following:

'* * * on the hearing for temporary injunction it was developed that on the last day of school in early June of 1965, L. G. Walker, Superintendent of the Perry County Board of Education, delivered to school officials, to be placed in the hands of school bus drivers, a mimeographed memorandum which in substance stated to the children that were to ride said bus the route or routes the busses would take during the school year of 1965-66 and the schools to which said busses would operate, but this Respondent says that there was no direct evidence that these mimeographed sheets ever actually arrived in the hands of the parents of said children; that the evidence adduced on said hearing firmly established that the Complainants had attempted during the entire Summer to ascertain from the Perry County Board of Education whether or not school busses would transport their said children to the schools located in the City of Marion and on more than one occasion the Complainants and other parents situated in North Perry County, where schools had been demolished by the Perry County School Board and children only recently assigned to schools within the corporate limits of the City of Marion, had sought to obtain from the Perry County Board of Education a definite statement as to whether or not their children would be transported on school busses to schools in the City of Marion; that in fact L. G. Walker, Superintendent of Education of Perry County, Alabama, had attended a community meeting in North Perry and this question had been propounded to the said L. G. Walker and he would not give to said parents a definite answer and stated to them he would see what could be done about the situation; that said parents were constantly inquiring of the Perry County Board of Education during the Summer of 1965 as to whether or not their children would be transported in school busses to schools in the City of Marion; that it was not until on, to-wit: Friday, August 27, 1965, that the Perry County Board of Education definitely advised the Complainants that their children would not be transported on school busses to the City of Marion and that the children of high school age would be transported to Suttle High School, necessitating that said children board said busses in the neighborhood of 5:00 to 5:30 each morning, returning to their homes between 5:00 and 6:00...