148 N.W. 831 | N.D. | 1914
(after stating the facts as above). The first point urged by counsel for appellant is that “the complaint does not allege, and the evidence does not show, that any election was ever called or had to determine the question of conveying pupils at the expense of said district to and from the school already established, and that there is no allegation in the complaint, and no evidence showing, that such school district was or is a consolidated school district, or that an election was ever had to determine the question of consolidating two or more schools.” In other words, it is contended that the writ of mandamus will not lie because the school board has no authority to furnish the transportation ordered by the judgment to be furnished.
The sections of the statute involved are § 84, chap. 266, of the Session Laws of 1911, and’ § 232, art. 15, of chap. 266, of the Session Laws of 1911. Section 84, chap. 266, of the Laws of 1911 provides: “Con
As we understand § 232 of art. 15, chap. 266, of the Laws of 1911, which relates to compulsory school attendance, and in a large measure stands by itself, free transportation must be furnished to children living more than 2¿ miles from the school, and compulsory attendance is required of such persons no matter whether the district is consolidated "or not. Such being the case, there was no necessity for proof of an election, as the evidence is clear that the school was the only one to which the children could go.- This disposes of the first point of appellant.
When we come to the merits of the case, however, we are not so well satisfied with the decision of the learned trial judge, nor with his finding that the respondents “unjustly and illegally discriminated against the children of said J. J. Brand, called the relator, and wholly failed to furnish transportation for said relator’s children.” There is, in our opinion, no material conflict in the evidence on the real issues in the case, and the only questions to be determined are whether the language of § 232, chap, 266 of the Laws of 1911, which provides for transportation “to and from school,” is to be strictly construed so that in all cases children must be actually conveyed from their house doors; to the doors of the schoolhouse, or whether a reasonable discretion in such matters has been left with the school board. Also, whether, if such discretion exists, there was an abuse thereof in the case at bar.
We are firmly of the opinion that the legislative intention was that actual transportation from the door of the home to the door of the schoolhouse should only be furnished as far as the same was reasonably practicable. In other words, that, though the statute is mandatory and cannot be avoided, it should be construed as if passed by reasonable men, and should be interpreted according to its spirit rather than according to its letter. .
We must, indeed, in the construction of such statutes, exercise the common sense of the ordinary man, and be willing to concede that possession and the presumption of its exercise in others. The purpose of the act is plain, and that is the promotion of the cause of education and
We cannot hold that the board abused its discretion in the premises, nor hold with the learned trial judge that the children of the petitioner are “unjustly and illegally discriminated against,” or that “transportation is wholly denied to them.” We must remember that petitioner’s children are not delicate girls, but boys of between ten and nineteen
The judgment of the District Court is reversed, and the case is remanded with directions to enter judgment dismissing the complaint.