Queeny v. Higgins

Ladd, J. According to the petition, the plaintiff resides two and one-half miles from the schoolhouse, and has a daughter of school age, to transport whom to and from school the defendants, as the board of directors of the district township, refused to enter into a contract with plaintiff or any other person, and plaintiff is unable to furnish such transportation without injury to himself. He prayed that a writ of. mandamus issue requiring the board to provide transportation for said child at the cost of the district. A demurrer on the ground that plaintiff’s remedy is by appeal to the county superintendent was sustained. The petition also contained allegations concerning the establishment of a highway, but the ruling on the demurrer as to these is [574] not questioned on this appeal. Tbe point raised has reference to tbe last clause in section 2774 of tbe Code, which, after authorizing tbe board of directors to rent a room, employ a teacher in certain contingencies, and in others to contract with other districts for, the instruction of the children, reads: “ And when there will be a saving of expense, and children will also thereby secure increased advantages, it may arrange with any person outside the board for the transportation of any child to and from school in the same or in another corporation, and such expenses shall be paid from the contingent fund.” It will be noted the arrangement for transportation is to be made only when (1) it will result in a saving of expense and (2) in increased advantages to the children. Thése matters involve an investigation and determination by the board of directors, requiring the exercise of their judgment and discretion. This being so, the remedy, upon its refusal to make such an arrangement as contemplated, is by appeal to the county superintendent. Preston v. Board of Education, 124 Iowa, 355. Possibly, had the board actually found that a saving of expense would be effected and increased advantages secured by the transportation of chib dren, it would be its duty to provide therefor. Ordinarily the word “ may ” is permissive, hut it is often construed to be mandatory, and generally so when it is employed to delegate a power the exercise of which is important for the protection of public or private interests. Van Shaack v. Robbins, 36 Iowa, 201; Sedgwick on Statutory Construction, 438; 20 Am. & Eng. Ency. of Law (2 Ed.) 239. But the petition contains no allegation of such a finding, nor even that a saving of expense or increased advantages in fact would be effected thereby; so that, for all that appears, the directors never so found, and it may not be true, and therefore the plaintiff has not brought himself within the provisions of nor shown himself entitled to the benefits of the statute. Section 2823a, Code Supp. [575] 1902, relating to compulsory attendance, at school, has no bearing on the question. The ruling was correct, and the judgment is affirmed.