State ex rel. Hughes v. Board of Ed. of Kanawha County

• Decision Date: 14 April 1970
• Docket Number: Nos. 12887,12888,s. 12887
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Miles HUGHES v. The BOARD OF EDUCATION OF the COUNTY OF KANAWHA, et al. and STATE ex rel. William T. McLAUGHLIN, II v. The BOARD OF EDUCATION OF the COUNTY OF MARION, et al.

Page 711

174 S.E.2d 711

154 W.Va. 107

STATE ex rel. Miles HUGHES v. The BOARD OF EDUCATION OF the COUNTY OF KANAWHA, et al. and STATE ex rel. William T. McLAUGHLIN, II v. The BOARD OF EDUCATION OF the COUNTY OF MARION, et al.

Nos. 12887, 12888.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1970.

Decided April 14, 1970.

Syllabus by the Court

1. 'Where the language of a statute is plain and unambiguous, there is no basis for application of rules of statutory construction; but courts must apply the statute according to the legislative intent plainly expressed therein.' Point 1 Syllabus, Dunlap v. State Compensation Director, 149 W.Va. 266, (140 S.E.2d 448.)

2. When a county board of education has provided a system for the transportation of school children by bus, pursuant to the provisions of Code, 1931, 18--5--13(6), as amended, the refusal of the county board of education to provide such transportation to certain children of the county, merely because they attend a Catholic parochial school, denies to such children and their parents the equal protection of the laws which is guaranteed by the Fourteenth Amendment of the Constitution of the United States and also denies to such children and their parents their right to religious freedom guaranteed by the First Amendment of the Constitution of the United States and by Section 15 of Article III of the Constitution of West Virginia.

Arthur T. Ciccarello, of Angel, Lewis, Ciccarello & Masinter, Charleston, Ross Maruka, of Maruka & Sansalone, Fairmont, James C. Higgins, of Higgins & Gorman, Beckley, for relator Mike Hughes and relator William T. McLaughlin, II.

John O. Kizer, of Campbell, Love, Woodroe & Kizer, Charleston, for relator Board of Education of County of Kanawha and relator Walter F. Snyder.

Hays Webb and Alfred J. Lemley, of Furbee, Amos, Webb & Critchfield, Fairmont, for relator Board of Education of County of Marion and relator T. J. Pearse.

CALHOUN, Judge:

These cases involve two separate proceedings in mandamus instituted in this Court. On November 3, 1969, the Court granted a rule in each case returnable January 14, 1970. Both cases involve the question of the right of children attending Catholic parochial schools to demand transportation to and from their respective parochial schools on buses owned and operated by county boards of education for the transportation of children who attend the public elementary and secondary schools of the respective counties involved in the two mandamus proceedings.

Inasmuch as the two cases involve substantially identical factual situations and legal questions, they were, by agreement of counsel and by the consent of the Court, combined for purposes of argument and decision.

One of the mandamus proceedings was instituted by Miles Hughes, the petitioner, as a citizen and taxpayer of Kanawha County and as a parent of children of school age, suing in his own behalf and in behalf of all other citizens of Kanawha County who are in like circumstances or similarly situated, against the Board of Education of Kanawha County and Walter F. Snyder, Superintendent of Schools of Kanawha County, as respondents. The petitioner alleges in his petition that he is owner of improved real estate assessed for taxes in Kanawha County; that he and his wife are parents of two daughters, thirteen and sixteen years of age, respectively; that his two daughters attend Charleston Catholic High School, a Catholic, nonprofit, nonpublic, parochial school situated in the City of Charleston, at a place more than two miles distant from the home in which the petitioner, his wife and two daughters live; that such attendance satisfies compulsory attendance requirements of Article 8 of Chapter 18 of Code, 1931, as amended; that approximately 500 students attend that school; that other similar parochial schools in Kanawha County are attended by approximately 1,400 students; that the school attended by the petitioner's daughters is operated generally according to the rules, regulations and requirements of the respondent board of education with reference to textbooks, curriculum and hours and days of operation; that the respondent board of education maintains at public expense a bus transportation system, not for all children of school age pursuant to the provisions of Code, 1931, 18--5--13(6), as amended, but, on the contrary, only for the benefit of children who attend the public schools of Kanawha County; that the respondents, acting through Walter F. Snyder, as county superintendent of schools, have refused, upon proper demand, to provide transportation at public expense for any students attending parochial schools in the county; that the respondents have a mandatory duty to provide bus transportation at public expense for all children of school age who attend schools within the county; that the respondents have arbitrarily and capriciously refused, in the circumstances, to perform their duties as required by the provisions of Code, 1931, 8--5--13(6), as amended; that such refusal constitutes a denial of equal protection of the laws as guaranteed by the Fourteenth Amendment of the Constitution of the United States and Article III, Section 10 of the Constitution of West Virginia; that the respondents' refusal to comply with their mandatory duty results in a denial to parochial school students of the benefits of the safety facilities provided by law for transportation of children in school buses maintained and operated by the respondent board of education; that such refusal discriminates against the petitioner, in violation of the First Amendment of the Constitution of the United States and Article III, Section 15 of the Constitution of West Virginia, because he is exercising his right to utilize the facilities of a Catholic parochial school; and that 'Bussing of school children is for their safety, health and welfare, and as such constitutes a public purpose, the same as the safety, health and welfare of all citizens.' The prayer of the petition is that the respondents be required to provide transportation at public expense for the petitioner's children and all other children attending nonpublic parochial schools in Kanawha County according to the same rules and regulations as transportation is provided for children attending public schools of the county.

An answer to the mandamus petition was filed in behalf of the respondents in the Kanawha County case previously referred to in this opinion. The answer alleges that the Kanawha County Catholic Area Board of Education operates within the county only one high school, Charleston Catholic High School, but that it operates within the county five elementary schools having an aggregate enrollment of approximately 1,300 students. The answer asserts that the granting of the petitioner's demand would require the respondent board of education 'to establish a new, separate bus system with different bus schedules and longer routes operating in much larger areas to accommodate Catholic elementary school pupils'; that, to construe Code, 1931, 18--5--13(6), as amended, in such a manner as to require the respondent board of education to furnish transportation of parochial school students would render that statute violative of the provisions of the First Amendment and the Fourteenth Amendment of the Constitution of the United States and also violative of Article III, Section 15 and Article X, Section 6 of the Constitution of West Virginia. Other material allegations of the answer, we believe, are primarily allegations which deny the validity of legal conclusions alleged in the petition.

The other case involves a mandamus proceeding instituted in this Court by William T. McLaughlin, II, a citizen, resident and taxpayer of Marion County, as petitioner, against the Board of Education of Marion County and T. J. Pearse, Superintendent of Schools of Marion County, as respondents. The petitioner alleges that he is the parent and natural guardian of three children of school age, being eight, seven and six years of age, respectively; that he is guaranteed by the First Amendment and the Fourteenth Amendment of the Constitution of the United States the right to enroll his children in a nonpublic parochial school; that his three children are enrolled in Fairmont Catholic Grade School in the City of Fairmont, in Marion County, which is a nonpublic, nonprofit parochial school operated by the Fairmont Catholic School Board, attended by approximately 285 children, which attendance satisfies the compulsory attendance requirements of Article 8 of Chapter 18 of Code, 1931, as amended; that the school is operated generally according to rules, regulations and requirements of the respondent county board of education and the West Virginia Board of Education with regard to textbooks, curriculum and hours and days of operation; that the petitioner, his wife and children live in a home in the City of Fairmont which is more than two miles distant from Fairmont Catholic Grade School; that the respondent board of education maintains and operates at public expense a bus transportation system, not for all children of school age, but rather only for children who attend the public schools of the county; that the Fairmont Catholic School Board, on behalf of parents of children attending Fairmont Catholic Grade School, has made numerous and repeated requests to the respondent board of education to provide bus transportation for children attending Fairmont Catholic Grade School but that such transportation has not been provided for the petitioner's children and other children attending Fairmont Catholic Grade School; that respondents have a mandatory duty to furnish bus transportation for the petitioner's children and all other children of the county of school age; that the respondents, in this respect, have arbitrarily and capriciously refused to perform their duties as required by Code, 1931, 18--5--13(6), as amended...