Appeal from judgment of Court of Common Pleas of Delaware County, No. 3148 of 1970, in case of Alfred T. Martin and Elizabeth Martin v. Garnet Valley School District.
Arnold M. Snyder, for appellants.
Andrew J. Forbes, with him Cramp & D'Iorio, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Cohen took no part in the decision of this case.
The appellants, Alfred T. Martin and Elizabeth Martin, are the parents of two children, ages seven and eight years, who, until January 19, 1970, attended the Concord Elementary School operated by the appellee school district. The Concord Elementary School is located approximately six miles from the appellants' home. Although the appellee operates a school-bus system, the only bus which comes to appellants' area terminates at a point approximately eight-tenths of a mile from the appellants' home. According to appellants, in the absence of other means of transportation, their small children must walk eight-tenths of a mile up a long, curving, dangerous hill to the terminus of the bus route, and there are no sidewalks or other methods of ascending the hill other than walking in the narrow road, which, appellants contend, is too hazardous to expect small children to undertake alone.
On January 19, 1970, after a dispute between the appellants and the appellee concerning the adequacy of the transportation furnished to appellants' children by the school district, the appellants obtained the approval of the Board of School Directors of the Rose Tree Media School District and enrolled their children in the Glenwood Elementary School operated by that district at the tuition rate of $131.54 per month.
On January 29, 1970, appellants, through their attorney, made a demand upon the appellee to pay the tuition in conformity with the provisions of the Public School Code of 1949, March 10, P. L. 30, Art. XIII, § 1313, 24 P.S. 13-1313, which reads as follows: "Where any pupil in any school district resides one and one-half
miles, or more, by the public road, from the nearest public elementary school in the district, such pupil, unless proper free transportation is furnished to a suitable school in the district, may attend any public elementary school in another school district more convenient of access, on obtaining the consent of the board of school directors of such other school district, and without the consent of the board of school directors of the district where such pupil resides. The district where such pupil resides shall promptly pay, to the district where such pupil attends, the tuition charge provided for by this act. . . ."
When the appellee school district replied that after studying the matter it had concluded that the transportation was adequate and it would refuse to pay the tuition required to send appellants' children to the Rose Tree Media School District's school, appellants filed a complaint in mandamus, seeking to compel the appellee school district to pay the tuition.
The appellee filed preliminary objections in the nature of a demurrer, stating that the appellants' complaint failed to state a cause of action in mandamus and requesting that the complaint be dismissed. On July 8, 1970, after argument before the court en banc, appellee's demurrer was sustained and appellants' complaint for a writ of mandamus was dismissed. Appellants brought this appeal.
The appellants argue that, under Section 1313 of the Public School Code, 24 P.S. 13-1313, it is mandatory upon the appellee school district to pay the tuition for the appellants' children to the Rose Tree Media School District and ...