Rysdam v. School Dist. No. 67 of Union County

• Decision Date: 16 June 1936
• Citation: 154 Or. 347,58 P.2d 614
• Parties: RYSDAM v. SCHOOL DIST. NO. 67 OF UNION COUNTY
• Court: Oregon Supreme Court

58 P.2d 614

154 Or. 347

RYSDAM v. SCHOOL DIST. NO. 67 OF UNION COUNTY

Supreme Court of Oregon

June 16, 1936

Department 2.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Action by Garrett Rysdam against School District No. 67 of Union County, Oregon. From an adverse judgment, the plaintiff appeals.

Reversed and remanded.

R. J. Green, of La Grande (Green & Hess and Carl G Helm, all of La Grande, on the brief), for appellant.

E. R Ringo, of La Grande, for respondent.

CAMPBELL Chief Justice.

School District No. 67 is a duly organized school district in Union county, Or. It adjoins School District No. 45, another duly organized school district in the same county. A school meeting was held in School District No. 67 on the _____ day of June, 1933. The notices calling said school meeting were duly and regularly posted according to law, by the clerk of the said school district. Said notices calling said meeting notified the electors of said district that the purpose of the meeting was for voting on the proposition of suspending the school in said district, and providing for the instruction of the pupils of said district, in the school in School District No. 45, School District No. 67 to pay their tuition but not to provide their transportation. These proposals were voted on by the duly qualified voters of said district and were adopted by a majority vote thereof at the meeting held pursuant to said notices.

The school in School District No. 67 was thereupon discontinued, and a contract entered into with School District No. 45 to furnish instruction to the school children of School District No. 67 for the school year of 1933-1934. No provision was made for the transportation of the children of School District No. 67 to School District No. 45.

The same proceedings were taken at a meeting held on July 11, 1934, for the school year of 1934-1935.

Plaintiff is a resident of School District No. 67 and lives a distance of six miles by the nearest traveled public highway, from the school in School District No. 45. During the school year of 1933-1934 he had two children of school age living with him at his home. During the school year of 1934-1935, he had three children of school age living with him at his home. At the commencement of each school year, he demanded that School District No. 67 furnish transportation for his children to the school in School District No. 45. This, School District No. 67 failed and refused to do. He thereupon furnished the transportation himself and began this action to recover reasonable compensation for his services in transporting his children to said school in the two schools.

For a second cause of action, he seeks to recover on an assigned claim under an identical state of facts with the exception that the assignor had only one child to whom transportation was furnished to school.

These facts are all set up in the plaintiff's complaint herein.

To this complaint School District No. 67 filed a demurrer on the ground that the complaint failed to state facts sufficient to constitute a cause of action. The demurrer was sustained, and the plaintiff refusing to plead further, judgment was entered against him, dismissing his cause of action, and for costs and disbursements. From that judgment, this appeal has been taken.

The question presented is: Can a duly organized school district suspend the operation of the school in its district and provide for the instruction of its pupils in another and adjoining district, by paying the tuition for such pupils, but refusing to provide for their transportation?

"The district school board of any legally organized district shall, when authorized by a majority vote of the legal voters present at any legally called school meeting, suspend the district school, *** for such time as they may have been authorized, and arrange with any adjoining or other school district *** during the time the school shall be suspended, for the instruction of the pupils of such district; and also provide for the transportation of any or all pupils residing therein to and from the school house in the district with which the arrangements for their instruction is made, and to pay for the amount of expense incurred in providing for the tuition, transportation or board of pupils in an adjoining or other district. *** District school boards are hereby authorized to pay for the tuition, transportation or board of pupils, as provided for in this section, out of the common school fund of their respective districts, and when authorized by a majority vote of the legal voters present at any legally called school meeting, shall levy a tax upon the taxable property of their districts for the purpose of carrying out the provisions of this section." Oregon Code 1930, § 35-1125.

It will thus be seen, under the above statute, that in order to suspend school provision must be made: (1) For the instruction of said pupils in another district; (2) for the payment of tuition for the instruction of such pupils; (3) to provide transportation for said pupils to said school, or pay board for said pupils, while attending school in another district.

The above provisions are mandatory, and the school district cannot, by vote or otherwise, avoid the discharge of a duty plainly imposed upon it. Sommers v. Board of Education, 113 Ohio St. 177, 148 N.E. 682, 684. The notice calling the qualified voters together to suspend the school and also to avoid paying transportation, was something the law does not permit.

It is unnecessary to pass on the legality of the suspension of the school. It was in fact suspended, and the school district should be estopped to claim that it was not done according to law and thereby evade the obligation imposed by statu...