State v. School Dist. No. 70, Otter Tail County

• Decision Date: 13 January 1939
• Docket Number: No. 31883.,31883.
• Citation: 283 N.W. 397,204 Minn. 279
• Parties: STATE ex rel. KLIMEK et al. v. SCHOOL DIST. NO. 70, OTTER TAIL COUNTY.
• Court: Minnesota Supreme Court

283 N.W. 397

204 Minn. 279

STATE ex rel. KLIMEK et al. v. SCHOOL DIST. NO. 70, OTTER TAIL COUNTY.

No. 31883.

Supreme Court of Minnesota.

January 13, 1939.

Appeal from District Court, Otter Tail County; Anton B. Thompson, Judge.

Mandamus proceeding by the State, on the relation of Leo A. Klimek and others, against School District No. 70, Otter Tail County, Minn., to compel the defendants to furnish free transportation to Adryan Klimek to and from school. From an adverse judgment, the plaintiffs appeal.

Affirmed.

Charles A. Lund, of Vining, and Philip R. Monson, of Fergus Falls, for appellants.

Dell & Rosengren, of Fergus Falls, for respondent.

PETERSON, Justice.

This is a mandamus to compel the defendant, a common school district, to furnish free transportation to Adryan Klimek, to and from school. The Klimeks lived about four and a half miles from the school by road and two and a half miles by short cut across country. Adryan is a boy about eight years old. It is claimed that he cannot very well use the short cut because to do so would expose him to danger from bulls, rams, dogs and other animals present in the fields which he would have to cross. Plaintiffs allege that it is within the financial power of defendant to pay for such transportation. Defendant considered and denied plaintiffs' request to furnish such free transportation. The sole claim is that defendant is under a mandatory duty by statute to furnish the transportation. The alternative writ was quashed and plaintiffs appeal from the judgment.

1. The matter of furnishing free transportation to school children is regulated by statute. Mason Minn.St.1927 and 1938 Supp. § 2816 (4), provides that the school board "may" provide for the free transportation of pupils to and from school at the expense of the school district provided funds for such purposes are available. The statute merely authorizes the school board to furnish such free transportation. The language of the statute is permissive and imports the exercise of discretion. Statutes conferring on school officers power to furnish free transportation of pupils unless in imperative terms are construed to be permissive and as authorizing a use of discretion. Note, 63 A.L.R. 417; see Johnson v. Unorganized School District, Cass County, 159 Minn. 226, 198 N.W. 463. Plaintiffs rely on Fogg v. Board of Education, 76 N.H. 296, 82 A. 173, 37 L.R.A.,N.S., 1110, Ann.Cas.1912C, 758. The facts in that case are substantially the same as those involved here. The court held that the duty to furnish free transportation is discretionary but that under the peculiar provisions of the statute there involved, that discretion was exercised arbitrarily and capriciously. The decision was based on the grounds of abuse of discretion, which was regulated in some particulars by the statute. Because of the difference in the statute there involved we do not regard the case as in point here. In the later case of Berry v. School Board, 78 N.H. 30, 95 A. 952, mandamus was denied in a situation similar to that involved here. Those cases are not particularly helpful because of the difference in the statute. A construction that our statute is discretionary is confirmed by its history. It is derived from L.1901, c. 262, § 6, in which the language was that the school board "shall have power to provide" such free transportation. The "may" of the statute in its present form is the equivalent of the "shall have power" of its antecedent.

2. Plaintiffs contend that the statute should be construed as being mandatory because Art. 8 of the constitution provides that it shall be the duty of the legislature to establish a general and uniform system of public schools (§ 1) and that the...