Seiler v. Gelhar
| Citation | 209 N.W. 376,54 N.D. 245 |
| Decision Date | 08 June 1926 |
| Docket Number | 5136 |
| Court | United States State Supreme Court of North Dakota |
Appeal from the District Court of Stutsman County, Jansonius, J.
Application to the district court for a writ of mandamus. The application was denied and the petition dismissed.
Order affirmed.
Affirmed.
S.E Ellsworth, for appellant.
The laws making it the duty of the school boards to provide conveyances for children living beyond the specified distance from the nearest school is mandatory. It is the duty of the board to provide such conveyance. It has no choice in the matter. It is the duty imposed upon it by the legislature. Eastgate v. Osago School Dist. 41 N.D. 518, 171 N.W 96.
A submission of differences to the decision of arbitrators must be by mutual agreement of the parties. Re Arbitration (Colo.) 21 P. 474.
When the legislature compels a party, without his consent, to arbitrate upon a claim which properly should be the subject of an action, this is an attempt to deprive him of the right which is secured by the Constitution, of a trial according to the course of the common law. People v. Haws, 15 Abb. Pr. (N.Y.) 115.
Carr & Rittgers, for respondents.
The plaintiff applied to the district court for a writ of mandamus. The petition was denied and the proceeding dismissed, whereupon the plaintiff perfected this appeal.
The controversy relates to the transportation of pupils to and from a consolidated school. The plaintiff is a parent of a child of school age and the defendants constitute the school board of Montpelier school district No. 14, of Stutsman county. In June, 1914, the schools in the district were consolidated, and it now embraces a full civil township. Two schools are maintained, one in the village of Montpelier, and the other in section 28. The plaintiff is a farmer, residing in section 4, three miles from the village of Montpelier. He is the father of a girl under eleven years of age. Prior to consolidation there was a school within three fourths of a mile from his home. During the first two years after the girl became of school age, the district provided vehicular transportation for her to and from Montpelier, but in 1923 this practice was discontinued. The reason assigned for ceasing to operate the bus was that plaintiff's child was the only person of school age in that part of the district and that, consequently, the cost of furnishing actual transportation was greater than the district board felt it could justifiably incur. The plaintiff is seventy-one years of age. He testifies that it is impossible for him to transport his daughter to school, that, as a result, his child is being deprived of the educational advantages to which she is entitled under the Constitution and the laws of this state.
It appears that the school board, in attempted compliance with the provisions of chapter 113, Sess. Laws 1921, is furnishing actual transportation to a number of pupils in the district; in several cases, the board has adopted the plan of paying parents of children of school age a stipulated compensation per day for bringing their children to and from school. In 1923 the board advertised for bids to operate a school bus; and the only bid was made by the plaintiff in the sum of $ 5 per day. The only child in that part of the district, excepting, perhaps, children of one Anderson who moved away about that time, that would have taken advantage of the bus, was plaintiff's daughter. In 1925, the district apparently canvassed the situation, with respect to transporting children to and from the consolidated school, and adopted a plan of compensation. The schedule of compensation is based upon the distance traveled, and the number of children in each family, in accordance with the statute. Plaintiff's child was considered when the schedule was made and the compensation offered the plaintiff is in conformity with the schedule adopted and the payment which was tendered and made in the case of other families. In short, it does not appear that plaintiff and his child have been made the victims of discrimination; all parents and all families are dealt with alike and equally. The claim is that the proffered compensation is clearly inadequate, and that it is the duty of the school board to furnish actual vehicular transportation. It appears to be the position of the plaintiff that the option of furnishing vehicular transportation or making cash payment is with the patron, and may not be exercised by the board; and that the plaintiff, having declined to accept the tender, is entitled to and may demand actual transportation. Under the schedule arranged by the board in 1925, the allowance to plaintiff was $ .35 per day.
As before stated, the district school board provided two public conveyances, one carrying the children to the school at Montpelier, and the other to the school house located in section 28. The bus that operated in the territory tributary to Montpelier, would be required to go three or four miles from its regular route in order to take plaintiff's child. Were this done, other children would have to be on the road an unreasonable length of time, in the opinion of the board.
The contentions of plaintiff's counsel may be summarized as follows: Article 8 of the Constitution directs the legislature to provide a uniform system of free public schools throughout the state extending from the primary through all the grades, including normal and collegiate courses. In order to execute the constitutional mandate, the legislature has at different times provided for transportation, in the cases of consolidated schools, of children living two and one-half miles, or more, from the school building, such transportation to be at public expense; that it is the mandatory duty to provide transportation at public expense to all children of school age, living two and one-half miles, or more, from the schools; that the legislature, in amending § 1190, Comp. Laws 1913, by the enactment of chapter 113, Sess. Laws 1921, did not intend to provide that the tender of a sum of money should be the legal equivalent of the transportation of pupils, that is, that such tender should not be deemed a discharge of the duty to transport the pupils or relieve the district of the duty to furnish actual vehicular transportation. Appellant contends that if chapter 113 of the Session Laws of 1921 must be construed as evincing a purpose to permit the school board to discharge the duty of transporting pupils by making a tender of money as an equivalent thereof, then the chapter must, to that extent, be held unconstitutional and void. It is then contended that the circumstances of the plaintiff being such that he cannot himself deliver the child at the school, it is duty of the board, on demand, to transport his child; and that the fact that such actual transportation will cost the district more than the amount tendered under the family system, is of no consequence. It is urged that the provision of the statute to the effect that the award of compensation made by the board may be submitted to arbitrators whose award shall be binding upon the board, is an unconstitutional invasion of plaintiff's rights.
Chapter 113 of the Laws of 1921 provides that if a patron be dissatisfied with the offer of compensation made by the school board as an equivalent of transportation, he may apply to the school board for a board of arbitration, consisting of one person selected by the patron, one person selected by the school board and another person chosen by the two already selected. The decision of the board of arbitration shall be final and binding upon the board. In the case at bar the plaintiff did not ask for arbitration and no arbitration was in fact had.
It was the view of the trial court that the plaintiff was not entitled to a writ because he had not taken advantage of the statutory remedies. The plaintiff had neither sought to have an election called nor applied for arbitration, hence the trial court held that his application for a writ must be denied.
Chapter 113, Sess. Laws 1921, reads as follows:
1. "To consolidate two or more schools or the territory usually served by two or more schools and select a site and provide a suitable building;" or
2. "To select a school already established and, if necessary, make...
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