Quinn v. School Committee of Plymouth

• Decision Date: 29 March 1955
• Citation: 332 Mass. 410,125 N.E.2d 410
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Thomas F. QUINN and others v. SCHOOL COMMITTEE OF PLYMOUTH.

Page 410

125 N.E.2d 410

332 Mass. 410

Thomas F. QUINN and others v. SCHOOL COMMITTEE OF PLYMOUTH.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Feb. 8, 1955.

Decided March 29, 1955.

Thomas F. Quinn, Plymouth, for petitioners.

Sumner H. Babcock, Boston, (Hugh R. Maraghy, Plymouth, Francis S. Moulton, Jr., Boston, Philip S. Cronin, Kingston, with him), for respondents.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS and COUNIHAN, JJ.

WILKINS, Justice.

This petition for a writ of mandamus was heard by a single justice and reserved and reported without decision upon the petition, the answer, and a case stated.

The five petitioners, residents of the town of Plymouth, are parents of children between the ages of seven and sixteen. Their children attend grades I and through VI in the Sacred Heart School in Plymouth or the Sacred Heart School in Kingston, about one hundred yards from the boundary between Plymouth and Kingston. These are private schools teaching denominational doctrine, including religious instruction, are conducted by a religious denomination or society, and are more than one mile distant from the homes of the children. The school in Plymouth is in the business center, and the pupils are in grades I and II. The school in Kingston is more than four miles from the Plymouth business center, and the pupils are in grades III through VI. The prayer of the petition is that the school committee be ordered to provide transportation 'whenever said children meet the criteria of distance as established from time to time by the respondents for all the school children of Plymouth.'

The committee provides transportation for public school children attending grades I through VI if the distance between the homes and the schools is in excess of one mile, and for those attending grades VII through XII if the distance is in excess of one and one-quarter miles. The committee has refused to provide transportation for the children of the petitioners for the reasons that no transportation is furnished for any pupils to any private schools whether within or without the town of Plymouth, and that transportation is furnished to pupils attending public schools outside the town only to the State aided vocational school in Weymouth, pursuant to G.L. (Ter.Ed.) c. 74, § 7 as amended, § 8A as appearing in St.1950, c. 622, and in the case of four elementary school pupils living twenty or more miles from the center of Plymouth to a school in Bourne. See G.L. (Ter.Ed.) c. 71, § 68, as appearing in St.1934, c. 97, § 1.

The petitioners rely upon G.L. (Ter.Ed.) c. 76, § 1, as appearing in St.1939, c. 461, § 3 and as most recently amended by St.1950, c. 400, which provides in part: 'Pupils who, in the fulfillment of the compulsory attendance requirements of this section, attend private schools of elementary and high school grades so approved shall be entitled to the same rights and privileges as to transportation to and from school as are provided by law for pupils of public schools and shall not be denied such transportation because their attendance is in a school which is conducted under religious auspices or includes religious instruction in its curriculum.'

1. The committee contends that 'the same rights and privileges as to transportation to and from school as are provided by law for pupils of public schools' mean those rights and privileges which are conferred by the statutes of the Commonwealth, and that those rights and privileges are confined to a right in certain circumstances to appeal to the State department of education under G.L. (Ter.Ed.) c. 71, § 68, as appearing in St.1934, c. 97, § 1. ¹ We cannot accept this contention. To do so would render the amendment of G.L. (Ter.Ed.) c. 76, § 1, by St.1950, c. 400 virtually meaningless. We think that by its enactment the Legislature intended to make available to children in private schools transportation to the same extent as a school committee within its statutory powers should make transportation available to children in public schools. See G.L. (Ter.Ed.) c. 40, § 4, as amended by St.1932, c. 271, § 6. ² The question is not what the committee can be made to do. The requirement imposed is that there be no discrimination against private school children in what the committee in its discretion decides to do.

If there be any inconsistency, which we do not intimate, between the amendment of G.L. (Ter.Ed.) c. 76, § 1, by St.1950, c. 400, and the earlier amendment of c. 76, § 1, by St.1941, c. 423, ³ the earlier amendment must give way.

2. The petitioners are not barred from resort to mandamus because of the existence of another adequate remedy. See Rines v. Justices of the Superior Court, 330 Mass. 368, 371, 113 N.E.2d 817. We are aware of no such other remedy. We are referred only to G.L. (Ter.Ed.) c. 71, § 68, as appearing in St.1934, c. 97, § 1. T...