Opinion
April 15, 1947.
May 7, 1947.
Schools — Pupils — Free transportation — Parochial schools — School Code.
The School Code of May 18, 1911, P. L. 309, as amended, does not impose any duty upon a school board to furnish free transportation for children of compulsory school age living more than two miles from the nearest public school in session, to and from the public school, for the purpose of attending a parochial school.
Argued April 15, 1947.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 102, Jan. T., 1947, from judgment of C. P., Chester Co., Nov. T., 1946, No. 36, in case of Paul Connell v. Board of School Directors of the Township of Kennett et al. Judgment affirmed.
Mandamus proceeding.
The facts are stated in the opinion, by HARVEY, J. of the court below as follows:
Upon petition of Paul Connell a writ of alternative mandamus has been issued against the Board of School Directors of the Township of Kennett as an individual board and the Boards of School Directors of the Township of Kennett, of the Borough of Kennett Square, of the Township of New Garden and of Independent No. 1, jointly as the Joint Board of School Directors of the Kennett Consolidated School. To the returns filed by the defendant school boards, plaintiff has demurred and, after argument, the matter is before us.
Plaintiff alleges there is a mandatory duty imposed by the School Code, the Act of May 18, 1911, P. L. 309, as amended, 24 PS 1-2394, requiring the defendant School Board of the Township of Kennett of the defendant School Boards acting jointly to furnish free transportation for his daughter, Catherine Connell to and from her residence and the Kennett Consolidated School for the purpose of her attendance as a pupil at St. Patrick's Parochial School, and has filed this application to compel performance of that alleged duty.
Defendants deny that there is any such duty, express or implied, imposed upon them, or any of them, by the provisions of the School Code, and aver that the expenditure of public monies for such purpose would be a violation of Article 10, section 2 of the Constitution of the Commonwealth.
The Kennett Consolidated School was established in 1930 as a joint consolidated school located in the Borough of Kennett Square and is maintained and controlled by the defendant school boards acting jointly. It is the sole public school located in any of the said school districts and the only one maintained for the residents of the School District of the Township of Kennett, a Fourth Class District.
In operation of the joint consolidated school the defendant school boards have heretofore and are now furnishing free transportation for children of compulsory school age, as defined by the School Code, who attend that school and who reside more than one and one-half miles by the nearest highway from that school.
Catherine Connell, ten years of age, resides with her father the plaintiff, in the School District of the Township of Kennett and more than two miles by the nearest highway from the joint consolidated school, the public school nearest to her home.
On December 12, 1945, the defendant school boards adopted the following resolution: "The Kennett Consolidated School Board extends the effective date for permanent discontinuance of transporting parochial school pupils to the end of the present school term, June, 1946, the secretary to notify Rev. Crane".
On September 7, 1946, the said boards adopted this resolution, to wit: "At the request of a representative of the parochial school directed to the board of directors of the Kennett Consolidated School, this board confirms its action taken at a regular meeting in December, 1945, to cease transporting of parochial school students on the buses of the Consolidated School, effective June, 1946, and further confirms the verbal order made to the students and other representatives of the parochial school, given Thursday, September 5th, and Friday, September 6th, 1946, not to enter the Consolidated School buses for tranportation to and from school."
On September 9, 1946, in accordance with the action of the boards evidenced by the resolutions recited but contrary to the demands of the plaintiff, Catherine Connell was and has been since then denied free transportation from her residence to the joint consolidated school for the purpose of her attendance as a pupil at St. Patrick's Parochial School, a sectarian school located in the same Borough as the joint consolidated school. Plaintiff has not requested nor does he desire that his daughter attend the joint consolidated school or that she be furnished free transportation for the purpose of attendance as a pupil at that school.
We shall first dispose of an incidental question raised by the record.
The Kennett Consolidated School was established and is maintained as "a joint consolidated school" (see the Act of May 13, 1925, P. L. 634, 24 PS 1632-1635); and, pursuant to Article XVIII, sections 1801-1807, of the School Code, 24 PS 1611-1617, the defendant school boards "supervise and direct its affairs" (see section 1805) and "exercise the same power and authority over the same as the several boards exercise over the schools in their respective districts" (see section 1802). If there be any duty imposed by the School Code to furnish transportation for the child Catherine Connell to and from her residence and this joint consolidated school, it rests upon all the defendant school boards acting jointly and not alone upon the board of the School District of the Township of Kennett, in which the child resides. It is also to be noted that it is not contended by the plaintiff that there is a power or discretionary duty in the failure to exercise which there has been an abuse of discretion.
We hold that there is no duty, mandatory or directory, ministerial or discretionary, provided by the School Code, which requires the defendant school boards, or any of them, to furnish free transportation for Catherine Connell to and from her residence and the Kennett Consolidated School for the purpose of her attendance at the school of which she is a pupil. We are constrained to reach this opinion upon a proper construction and interpretation of the School Code.
First. There is no provision of the School Code which expressly imposes a duty upon the defendant school boards, or any of them, to furnish free transportation for any pupil in any circumstance other than one attending the joint consolidated school, and we understand the plaintiff so concedes.
Second. We find no duty implied from any provision of the School Code (as the plaintiff contends there is) imposed upon the defendant school boards, or any of them, to furnish free transportation for any pupil in any circumstance other than one attending the joint consolidated school.
In our approach to the question of whether or not there is such an implied duty, it should be noted that the Act of Assembly we are construing establishes a "public school system", as it declares by its first section; and that the Act is a "School Code" for the "public school system" in this Commonwealth, as it provides by its last section. By section 201 it is this "public school system" alone which shall be administered by the board of school directors of the several school districts and by section 401 the "public schools" are only those established by these boards.
Generally speaking, from the foregoing references and all the other provisions of the School Code, we can conclude only that a board of school directors has no duty to provide any equipment, supplies, materials, facilities or personnel, except in the establishment and maintenance of a public school or in the administration of a public school system for the purposes directly related to the education of pupils attending public schools.
While in the view just expressed it is not perhaps material, it may be noted that of the duties imposed upon and the powers vested in the boards of school directors some of the functions are ministerial, or are mandatory (see Ehret v. Kulpmont Borough School District, 333 Pa. 518 and Com. v. Zang et al., 142 Pa. Super. 566), and, perhaps most are discretionary, that is, the subject of the exercise of a cautious discretion (see Galloway v. Prospect Park Borough School District, 331 Pa. 48 and Com. ex rel. v. Sunbury School District et al., 335 Pa. 6) to be interfered with by the courts only if abused (see Lamb v. Redding, 234 Pa. 481). With evident clear understanding of the differentiation, the legislature has used the permissive word "may" in some provisions relating to the functions of boards of school directors and in others the imperative "shall".
The express provisions relating to free transportation facilities which we find material in the School Code are the following. Some thereof are directory and the subject of exercise of discretion and others mandatory. See Jones v. Boulter, 61 Pa. Super. 73.
By Article XIV, section 1404, as amended by the Act of May 13, 1937, P. L. 605, section 7, and by the Act of May 29, 1945, P. L. 1112, section 3, 24 PS 1375, it is provided inter alia: "The board of school directors in any school district in this Commonwealth may, out of the funds of the district, provide for the free transportation of any pupil to and from the public schools." The remaining provisions of this section as amended can leave no doubt that the legislature had in mind only the transportation of public school pupils.
Section 1405, as amended May 29, 1945, P. L. 1112, section 4, 24 PS 1377, relates primarily to the assignment of pupils from one district to another and provides in part: "That whenever any child or children of compulsory school age have their residence more than two miles by the nearest public highway from the school to which they have been assigned within the district, and free transportation for such child or children to a school within the district is not provided, and there is a school in session in some other district in the Commonwealth within two miles by the nearest public highway of the residence of such child or children, the board of school directors shall re-assign such child or children to this school in another district, unless the consent of the board of directors of said district is refused, and shall pay to said district the tuition charge provided for by this act. This provision shall include also in like manner assignment to high schools in the case of pupils under sixteen years of age who are qualified to be enrolled in such high schools: Provided, further, That hereafter it shall be unlawful for any school director, superintendent, or teacher to make any distinction whatever, on account of, or by reason of, the race or color of any pupil or scholar who may be in attendance upon, or seeking admission to, any public school maintained wholly or in part under the school laws of the Commonwealth." Manifestly here too the free transportation referred to applies only to that for pupils attending a public school.
So again in section 1406, as amended by the Act of May 29, 1945, P. L. 1112, section 5 (c), 24 PS 1378, relating to the closing of schools and assigning of the pupils to other schools, it is provided that certain elementary school pupils who are assigned to another school "and reside one and one-half miles or more from the school to which they are assigned, shall be furnished proper transportation, at the expense of the district, to and from the elementary school to which they are assigned" etc. It is plain that here also the legislature has reference only to public school pupils.
Section 1408, as amended by the Act of July 1, 1937, 24 PS 1380, provides how computation of distance, in respect of transportation, shall be made and by what means "free transportation of pupils, as required or authorized by this act, or any other act, may be furnished." The first two sentences demonstrate that when the legislature provided for free transportation in any circumstance by any provision of the Code, it intended such transportation for public school children only. Those sentences are: "Where, by the terms of this act, or any other act, any distance is specified between the residence of any pupil and any public school to be attended by him, or any transportation is provided for within or beyond any particular distance, in computing such distance no allowance shall be made for the distance that the dwelling house of the pupil is situated off the public highway. All such distances shall be computed by the public highway from the nearest point where a private way or a private road connects the dwelling house of the pupil with the said highway to the nearest point where said highway touches the school grounds of the school to which pupil has been assigned."
Despite all of this, the plaintiff contends that a mandatory duty to furnish free transportation for his daughter to and from her residence and the joint consolidated school for the purpose of her attendance at St. Patrick's Parochial School, must be implied from the compulsory attendance provisions of the School Code covered by sections 1414 to 1424 thereof, as amended, 24 PS 1421-1431. The argument is that because every child residing in the Commonwealth, not later than at the age of eight and until the age of seventeen years, with certain exceptions, is required by section 1414, as amended by the Act of June 24, 1939, P. L. 786, section 2, 24 PS 1421, to attend a qualified day school or to receive regular daily instruction by a qualified private tutor, there is an implied mandatory duty upon the board of school directors of the school district of a child's residence, arising from the provisions of section 1418, as amended June 24, 1939, P. L. 786, section 5, 24 PS 1425, to furnish free transportation for such child to and from its residence and a public school, when the child attends a school other than a public school or receives the instruction of a private tutor. We need not discuss the question whether a mandatory duty may be implied.
Section 1418, as amended, provides as follows: "In case there is no public school in session within two miles by the nearest public highway of the residence of any child, such child shall be exempt from the provisions of this act relating to compulsory attendance, unless proper free transportation be furnished to such child to and from school: Provided, If proper free transportation is furnished to any such child to and from school, the Commonwealth shall reimburse any school district of the fourth class, or any school district of the third class which is located wholly within the boundary lines of a township, furnishing such transportation in the same manner and amounts as provided for in this act for transportation of pupils from closed schools."
The position of the plaintiff we find untenable. The language of this section, particularly the phrase "public school in session", we think clearly indicates that the legislature intended that no child of compulsory attendance age should be exempt from attendance at some qualified school, or from instruction by a qualified tutor, if there be a public school at which that child could attend if furnished free transportation, where the residence of the child was not within two miles of that public school. The legislature intended the absence of free transportation to excuse only a child who otherwise would attend a "public school in session." The plaintiff objects that this construction results in coercion of attendance at a public school. We do not agree. A parent may elect to send his child to a qualified school other than a public school, or to a qualified private teacher or tutor, but in such event the School Code does not provide for the child's free transportation in any circumstance. Looking beyond the provisions of this section and of the other so-called compulsory attendance provisions and adverting to those of section 1408, as amended, 24 PS 1380, the free transportation and the distance specified by section 1418 are restricted in application exclusively to a "pupil and any public school to be attended by him" or to the school "to which the pupil has been assigned" (meaning assigned by the proper board of school directors), by the express provisions of that section 1408.
The ground above stated, upon which we rest our decision, make it unnecessary for us to answer the question whether the free transportation of Catherine Connell by the school boards involved, in the circumstances here, would be in violation of Article 10, section 2 of the Constitution of Pennsylvania, which provides: "No money raised for the support of the public schools of the Commonwealth shall be appropriated to or used for the support of any sectarian school."
A mandamus lies where there is a clear legal right in the plaintiff, a corresponding duty resting upon the defendant and the absence of any other adequate, appropriate and specific remedy.
For the foregoing reasons, we have concluded that there is no such clear legal right in the plaintiff as he alleges and no such corresponding duty resting upon the defendants, or any of them, as he seeks to enforce, which warrants a writ of peremptory mandamus.
And now, February 17, 1947, the demurrers are overruled, judgment is rendered for the defendants and a peremptory mandamus is refused.
Plaintiff appealed.
Costs will be paid by the plaintiff.
Samuel Lichtenfeld, for appellant.
J. Paul MacElree, with him Larmore Scarlett, for appellees.
The judgment of the court below is affirmed on the opinion of Judge HARVEY.