Wellston Consol. Sch. Dist. No. 1 v. Matthews
| Decision Date | 20 May 1924 |
| Docket Number | Case Number: 13503 |
| Citation | 104 Okla. 185,1924 OK 575,230 P. 739 |
| Parties | WELLSTON CONSOLIDATED SCHOOL DISTRICT NO. 1 et al. v. MATTHEWS. et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Schools and School Districts--Rights of Transferred Pupils in Consolidated School.
Children legally transferred from adjacent school districts to a consolidated district are entitled to all the rights and privileges that are enjoyed by children residing in such district.
2. Same--Right to Transportation.
In a consolidated school district, where all pupils living two or more miles from the school are furnished conveyances, at the expense of the district, a pupil legally transferred from another district, when going to school over the direct traveled route, from his home to the school, which intersects the route traveled by those conveying the school children from their homes to school, at a point two miles or more from the school building, is entitled to conveyance.
3. Same--Mandamus to Enforce Right.
The writ of mandamus may issue requiring a school board of a consolidated school district, who have provided conveyance for children living two or more miles from school, to furnish conveyance to all pupils entitled to same.
4. Mandamus--Procedure--Necessity for Alternative Writ.
Where notice is given of the filing of an application for mandamus, and the defendant appears and files answer, and on the hearing of the matter a peremptory writ of mandamus is issued, such proceeding is not in contravention of the statute requiring that an alternative writ must first be issued.
Commissioners' Opinion, Division No. 3.
Error from District Court, Lincoln County; Hal Johnson, Judge.
Action by George H. Matthews and others against Wellston Consolidated School District No. 1 et al. Judgment for plaintiffs, and defendants appeal. Affirmed.
Erwin & Erwin, for plaintiffs in error.
Foster & Feuquay and Emery A. Foster, for defendants in error.
¶1 The defendants in error, plaintiffs in the lower court, George H. Matthews, Henry Green, and John L. Ford, filed their petition asking for writ of mandamus, in the district court of Lincoln county, state of Oklahoma, on the 20th day of October, 1921, wherein they allege that they are residents of school districts in Lincoln county, adjacent to Wellston Consolidated District No. 1, and that each of said plaintiffs have had certain of their children legally transferred from the district of their residence to the above said district. That said consolidated district has provided transportation for all children living two miles or more from the school building located in said district, and these plaintiffs further allege that pursuant to said order of transfer, they conveyed their children to a point in said consolidated district, and along the route which was traveled by those employed to convey the children to school, and that children, under the direction of the school board, the appellants herein, defendants in the lower court, refused to convey their children, and this action was instituted to mandamus said school board, requiring that the children of these plaintiffs be conveyed as other children.
¶2 Notice was duly given of the application for mandamus and the defendants responded, and in their answer allege numerous defenses, or reasons why the writ of mandamus should not issue, but the principal contention, and the one most seriously urged, is, that there is no provision of law which authorizes the officers of the district, the defendants herein, to convey pupils to school who have been transferred from another district. They also raise the question that the court was in error in granting the peremptory writ of mandamus without first granting an alternative writ.
¶3 The cause was submitted to the court on October 22, 1921, and resulted in judgment in favor of the plaintiffs, and the issuance of a peremptory writ of mandamus, from which judgment of the court the appellants duly appeal, and set forth numerous assignments of error, and present their argument under two different propositions: First, that the decision and judgment of the court was not sustained by the evidence, and is contrary to law. From an examination of the record, we find no material conflict in the evidence; the facts disclosed by the record show that the plaintiffs resided in school districts adjacent to the defendant school district, and that their children were duly transferred to the Wellston Consolidated School District: that at the beginning of the school term the parents of said children, plaintiffs herein, conveyed their children to a point within the defendant district and along the route traveled by the trucks conveying the children to school, and requested that their children be conveyed, which was refused as heretofore stated.
¶4 The law of this state, section 446, Comp Stat. 1921, provides:
"The writ of mandamus may be issued by the Supreme Court or the district court, or any justice or judge thereof, during term or at chambers, to any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty resulting from an office, trust or station; but though it may require an inferior tribunal to exercise its judgment or proceed to the discharge of any of its functions, it cannot control judicial discretion."
¶5 And while appellants make some contention that there is no authority for the issuance of the writ in cases of this character, we think the law clearly covers such a case as the one at bar, and section 449, Comp. Stat. 1921, provides that:
"When the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, peremptory mandamus may be allowed in the first instance, in all other cases the alternative writ must first be issued."
¶6 This statute, as we view it, is for the benefit of the defendant in the case, requiring the court to issue an alternative writ in the first instance in cases where the right to issue the writ is in doubt, or not clear, to the end that the defendant may appear and show cause why a peremptory writ should not be granted. We do not think this question very material, however, in this case, as notice was given in lieu of the issuance of an alternative...
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Fuller v. Getz
...made an appropriation to provide for such special election, we are of the opinion that what we said in Wellston Cons, School Dist. v. Matthews, 104 Okla. 185, 230 P. 739, is sufficient. Thus it appears that the answer of the plaintiff in error wholly failed to present any issue of material ......
- Wellston Consol. School Dist. No. 1, Lincoln County v. Matthews