Summary
In Gordon v. Wooten, 168 Miss. 717, 152 So. 481, it was held that the courts take judicial notice of the classes of municipalities in this state and that small municipalities do not have trolley and bus lines, and in Owen v. Anderson, 119 Miss. 66, 80 So. 386, that a municipality is incorporated as such. For like reasons, the courts will take judicial notice of which municipalities are operating under the Code chapter on that subject and which operate under special charters, and furthermore, of the duties and obligations of their municipal officers.
Summary of this case from City of Aberdeen v. Bank of AmoryOpinion
No. 31024.
February 5, 1934.
1. MANDAMUS. Mandamus petition of patrons of separate school district to compel trustees of district to provide transportation for petitioners' children living more than two miles from school house held not demurrable, though not as complete as it should have been ( Code 1930, section 6665, clause 7).
Petition alleged that petitioners were compelled by law to send children to school; that they lived from two and one-half to five or more miles from school house and that it was physically impossible for many of younger children to walk from five to ten miles a day to go to school, especially in cold, bad, or rainy weather; that petitioners were taxpayers in the district, but had no voice in election of trustees or levying of taxes; that it was duty of trustees to provide transportation for children living more than two miles from school; that trustees had failed and refused to comply with such duty; and that petitioners had no adequate remedy, except mandamus, to compel performance of trustees' duty.
2. SCHOOLS AND SCHOOL DISTRICTS.
It is duty of separate school district to provide school within convenient and reasonable distances or, in lieu thereof, to provide transportation (Code 1930, section 6665, clause 7).
3. MANDAMUS. Schools and school districts.
Under statute authorizing trustees of separate school district to provide transportation where necessary for children living two miles or more from school house, the necessity exists, as matter of law, and mandamus lies to compel transportation, where school buildings are so far distant that pupils cannot reach them safely and without undue exposure (Code 1930, section 6665, clause 7).
4. EVIDENCE.
Court judicially knows classes of municipalities in state, and knows that small municipalities do not have trolley or bus lines.
APPEAL from Circuit Court of Tate County.
J.F. Dean, of Senatobia, for appellants.
This suit is controlled by subsection 7 of section 6665 of the Code of 1930.
We insist that this section does not give the school trustees the power or authority to say when it is necessary to furnish transportation. We say that this is a question of fact and that if it is not necessary to furnish transportation they could be enjoined from doing so if they attempted it and that if it is necessary they may be compelled by mandamus to furnish this transportation. It is a question of fact to be determined by the proper court when it is appealed to settle this fact of necessity. The statute does not say that if the trustees deem it necessary, but when it is in fact necessary.
The courts of Mississippi have uniformly held that school trustees are ministerial and not judicial officers.
Marion v. Grandich, 114 Miss. 560; Clarke v. Board of Trustees, 117 Miss. 234; Broadus v. State, 132 Miss. 828. Herbert Holmes, of Senatobia, for appellees.
On August 28, 1933, the attorney-general of the state of Mississippi, was called upon to render an opinion construing paragraph 7, section 6665, Code of 1930, and such opinion was read to the court below which says: "In my opinion, this statute leaves it within the discretion of the trustees as to whether or not they furnish transportation. In other words, the provisions thereof are not mandatory."
Interpretation placed on doubtful statute and followed for considerable time by administrative department should be followed by court.
Briscoe v. Buzbee, 163 Miss. 574, 143 So. 407.
Courts take judicial knowledge of attorney-general's holdings and rules of practice in state departments of government.
Briscoe v. Buzbee, 163 Miss. 574, 143 So. 407.
Court will not interfere with the exercise of discretion of school trustees in matters confided by law to their discretion, unless there is a clear abuse of discretion or violation of law.
McLeod v. State, 154 Miss. 474, 122 So. 737; 63 A.L.R. 410.
It has been well said that a writ of mandamus should never issue unless there is a clear legal right to the thing demanded and not an equitable right, but it must be a legal right of which there is no doubt.
State v. Jackson, 81 N.E. 62; Sec. 2348, Miss. Code of 1930.
Under section 6639, Code of 1930, the consolidated school trustees and the county superintendent of education are authorized and empowered to provide transportation without any reservation, limitation or discretion, whereas, under section 6665, paragraph 7, the trustees of the municipal separate school district may provide transportation when necessary.
The appellants, patrons of the Coldwater separate school district which embraced additional rural territory, filed a petition in the circuit court of Tate county, seeking a writ of mandamus to compel appellees, trustees of the school district, to provide for transportation of the children of appellants, pupils of said school living more than two miles from the school house in said district. The petition alleged that the appellants were compelled, by law, to send their children to school, and that they live from two and one-half to five or more miles from the school house in said district, and that it is necessary that their children be provided with transportation to and from said school, as it is a physical impossibility for many of the younger children to walk from five to ten miles a day to go to school, especially in cold, bad, or rainy weather. The petition also alleged that appellants are taxpayers in said district, but have no voice in the election of trustees, nor the levying of taxes, and that it is an unjust discrimination against them to compel them to pay taxes to said school district and to be denied the benefits and privileges of said school, or be compelled to furnish the necessary transportation for their children at their own expense in addition to the school taxes they are compelled to pay to support said school in said separate school district; and that it is the duty of the appellees, as trustees of said school, to provide transportation for children living more than two miles from said school, said trustees having the power so to do conferred upon them by law; but that they have failed and refused to comply with their duty, as such trustees, in providing such transportation for all children living in said district more than two miles from the school house, and that petitioners have no adequate remedy other than mandamus, to compel the performance of appellees' duty in said regard.
By section 6657, Code 1930, the board of mayor and aldermen may declare a municipality a separate school district, and, under certain conditions, other unincorporated districts may be created separate school districts.
Under section 6662, Code 1930, a municipality constituting a separate school district is given the authority to levy a tax on the entire separate school district for the purposes of said school.
Section 6664, Code 1930, provides for the board of trustees of separate school districts and their qualifications.
Section 6665, Code 1930, prescribes the duties of the trustees of separate school districts, and clause 7 thereof reads as follows: "To furnish blackboards and other necessary furniture, books, equipment, and apparatus for the use of the schools; to provide transportation when necessary for the children in their respective districts who live two miles or more from the school house, and pay for same out of the school funds of the district, as teachers' salaries are paid."
The petition filed by the appellants was demurred to, and this demurrer was sustained by the court below.
We think the petition was good against the demurrer, although it was not as full and complete as it should have been. It appears that the appellants lived from two and one-half to five or more miles from the school house in said district.
It is the duty of separate school districts to provide schools within convenient and reasonable distances, or, in lieu thereof, if the school houses are not so situated, to provide transportation.
Appellees urge that the words "when necessary" leave it to the discretion of the board to determine whether or not they will provide transportation.
As stated above, it is the duty of the proper authorities to provide school facilities so that children within reasonable distances can attend school. During certain ages, it is mandatory that children attend school. In some situations, there are methods of transportation, such as trolley and bus lines, etc., by which pupils may attend school. In some of the larger municipalities which maintain high schools, as distinguished from grammar schools, pupils of certain ages are able to reach the schools without undue inconvenience, hardship, or exposure. Where such transportation is available, it may be that the trustees can dispense with the transportation at public expense; but where the authorities have located school buildings so far distant that small children cannot, with safety and without undue exposure, attend school, it is contemplated that the authorities shall furnish transportation. When the facts show that the pupils cannot reach the school buildings safely and without undue exposure, then the necessity exists as a matter of law. The transportation feature was provided so that better buildings and equipment could be provided, and, at the same time, the children could reach schools with safety.
We know that small municipalities do not have trolley or bus lines for public transportation. We also judicially know the classes of municipalities in this state; and we know that it is not reasonable to require children to walk from three to five or more miles to school, and that such a great distance would subject them to exposure, and make it impossible for them to receive the benefits of the school system.
We think it was error, therefore, for the court below to have sustained the demurrer to the petition.
The cause will be reversed and remanded for further procedure in consonance with the views herein expressed.
Reversed and remanded.