State Ex Rel. Fried v. McDonald , 53 N.D. 723 ( 1926 )

The relator Fried seeks relief from a judgment of the district court of Morton county. He was prosecuted on the charge of having violated the Compulsory School Attendance Law, § 1342, Comp. Laws 1913, as amended by chapter 206, Sess. Laws 1917. A fine was imposed. No question of procedure is raised.

Relator Fried is the parent of four children of school age residing within Crown Butte School District No. 15. Defendant is the sheriff of Morton county. It is not disputed that the relator lives more than 2 1/4 miles from the nearest school; and that the school board offered to pay the defendant 50 cents per day for transporting his children to school.

The defendant contends that the criminal complaint does not state an offense and that, under admitted and stipulated facts, he has not committed an offense or violated the Compulsory School Attendance Law. It is the contention of the state that the tender of compensation is the equivalent of furnishing transportation, within subdivision 5 of § 1342, supra, and that the parent having failed to require his children to attend school after such tender by the board, he violated the penal provisions of the act.

A brief resumé of recent legislation upon this subject throws some light upon the legislative intention. In 1911 the school laws of the State were codified. Subdivision 4 of § 232 of chapter 266, Sess. Laws 1911, contained a provision, mandatory in form, directing the school board to "provide transportation" for such children of school age as lived more than 2 1/2 miles from the nearest school. By chapter 267, of the Session Laws of 1913, the law governing transportation was again amended. This time the school board was directed, again in mandatory terms, to "arrange a system of zones for the transportation of children to and from school at the expense of the district." The pay for transportation was fixed according to the residence of the children within the different zones, the maximum per family for each zone being determined by the board and not fixed in the law. Subdivision 5 of this chapter then provides that when the board has made provision for transportation in conformity with the act, pupils residing within the district become amenable to the provisions of the statute relating to compulsory attendance. In 1915, § 1342 supra, was again amended. The maximum distance was reduced to 2 1/4 miles and the statute directed school boards to pay a sum not exceeding 35 cents per day per family for transportation of pupils living beyond the maximum distance. The following proviso was then added: "Provided that the tender of such daily compensation shall be construed as furnishing transportation and when such a tender is made by the school board, the compulsory school attendance law shall apply to all children of school age living more than 2 1/4 and not to exceed 5 miles from school."

Section 1342, supra, was again amended by chapter 206, Sess. Laws 1917, subdivision 4. The amendment provides that if no school is taught the required length of time within 2 1/4 miles from the residence of the children by the nearest route "the school board or board of education shall, except in cases of consolidated schools, pay for transportation a sum of not less than 25 cents, nor more than 50 cents, per day to any one family living more than 2 1/4 miles from the nearest school, which shall be equitably based upon the distance traveled and the number of children from each family, or the board shallfurnish transportation, or the equivalent in lodging if acceptable to the family; and when such transportation isfurnished, the Compulsory Attendance Law shall apply, etc."

We think the legislative intent is to make the parents of children of school age living beyond the 2 1/4 mile limit amenable to the criminal provisions of the statute only in cases where the school board actually furnishes, or offers to furnish, vehicular transportation, or actual carriage to the children. In the law, as it stood before the amendment, a tender of transportation or of compensation was expressly declared to be sufficient and to bring the parents within the penal provisions of the statute. This part was stricken in 1917. The school board was given the option to pay the parent or to furnish actual carriage for the children to the school; if, for any reason, the parent would not accept the tender of compensation, or, perhaps, was unable to actually transport his children to school for the compensation which the law permits the board to pay, then the board had the option of furnishing actual carriage to the children, which offer, if rejected, would render the parent liable to a criminal prosecution. We think it reasonable to suppose that the legislature considered that the legislature considered that the maximum compensation of 50 cents per family per day might in some instances be inadequate to enable a parent of small means or limited facilities to arrange the necessary transportation, and that in such circumstances, and when the board did not furnish or offer to furnish vehicular transportation, or actual carriage to the children, the parent should not be subjected to the penalties of the law. The language of the statute is plain. It is only when "transportation is furnished," and the parent notwithstanding neglects to send his children to school that the penal provisions of the act become applicable. We cannot construe the word "transportation," as used in this penal statute, as the equivalent of tender of pay for transportation. If we did so construe it, it would amount to a holding that the legislature used the word in two essentially different senses in the same paragraph of the statute, and while dealing with the same subject matter. When the legislature speaks of "pay" for transportation what is meant is pay for vehicular transportation or actual carriage of the children; when a few lines below the legislature makes it the duty of the board to "furnish transportation" as an alternative of the offer of pay therefor, it is, of course, speaking of the same thing, namely vehicular or actual transportation.

We are of the opinion that no offense was stated in the complaint, and, on the stipulated facts, the relator Fried is not guilty of violating the Compulsory School Attendance Law. He should be released and the fine remitted. It is so ordered.

CHRISTIANSON, Ch. J., and JOHNSON, BURKE, and BIRDZELL, JJ., concur.