Board of Education v. Gresham

Jenkins, J. (After stating the foregoing facts.) Section 1378 of the Civil Code of 1895 was as follows: “In special cases, to meet the demands' of convenience, children residing in one sub-district may, by express permission of the county board, attend the common schools of another subdistrict; and when a common school is located near a county line, children from an adjoining county may, by the consent of the county boards of the respective counties, be permitted to attend the school. In such cases the teacher shall make out- two accounts, one against each county board, in amount proportioned to the number of children in the school from the respective counties.” In 1903 the General Assembly so amended this provision as to read as follows: “In special cases, to meet the demands of convenience, children residing in one subdistrict may, by express permission of the county board, attend the common schools of another subdistrict; and when a common .school is located near a county line, children from an adjoining county shall be permitted to attend the school: Provided, such children reside nearer such school, or said school is more accessible to the residences of such children than any public school in the county of their residence. In such cases the teacher shall make out two accounts, one against each county board, in amount proportioned to the number of children in the school from the respective counties.” Civil Code (1910), § 1509. Counsel for the plaintiff in error contend that the word “shall,” as above italicised by us, should be construed as having the meaning of “may;” but since the legislature by specific amendment manifested its intent by not only striking from the law, as originally enacted, the words, “by consent of the county boards of the respective counties,” but by substituting the word “shall” in lieu of the word “may” as originally used, we are without power to give to the present statute the interpretation now asked for by counsel. It appears that the purpose of the legislature was to make such right of attendance [442] independent of any permissive authority of-the county boards, the only condition to such right of attendance under the present statute being the added requirement that such children shall reside nearer such school, or that it shall be more accessible to the residences of such children than any public school in the county of their residence. The sole condition thus prescribed by the statute being met by the evidence, and it being undisputed, the verdict for plaintiff was demanded, and there was no error in directing the same. Judgment affirmed. Wade, O. J., and Lulce, J., concur.