178 N.E. 12
No. 22953Supreme Court of Ohio.
Decided October 14, 1931.
Schools — Attendance at nearest school in grades below high school — Section 7735, General Code — Mile and one-half measured by most direct route of public travel.
ERROR to the Court of Appeals of Carroll county.
This is an action to reverse a judgment of the Court of Appeals of Carroll county. The record discloses that plaintiff in error, Emil Eisenbut, resided in the Jefferson Hall school district, Center township, Carroll county, Ohio, and further that his children below high school age were assigned to the Jefferson Hall school. The home of plaintiff in error is located about two miles from the Jefferson Hall schoolhouse by the most direct route of public travel, and approximately one-half mile by a direct line route across plaintiff in error’s own land and along a lane leading past the schoolhouse; it not being necessary to cross the property of other landowners to reach said school.
The two sons of plaintiff in error, during the time in question, were pupils and actually attended the Jefferson Hall school. His two daughters, below high school age, the question of whose tuition is involved in this controversy, attended the Carrollton village grade school in Carrollton, Ohio.
The action was brought by the board of education of Carrollton school district to recover from Eisenhut the sum of $270, with interest, claimed to be due for the tuition of the two children of plaintiff in error attending the Carrollton village grade school.
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The plaintiff in error, defendant below, denied the right of the school board to recover the tuition from him, because he claims that the school in the district to which the children were assigned is more than a mile and a half from the residence, and that he was therefore entitled to send his children to the Carrollton village grade school, approximately three-fourths of a mile from the Eisenhut residence, that being the nearest school in another district, there being none nearer in the same district; that their tuition should be charged to the Center township board of education, that being the township in which Eisenhut and his children resided. He relies on Section 7735, General Code, which reads as follows:
“When pupils live more than one and one-half miles from the school to which they are assigned in the district where they reside, they may attend a nearer school in the same district, or if there be none nearer therein, then the nearest school in another school district, in all grades below the high school. In such cases the board of education of the district in which they reside must pay the tuition of such pupils without an agreement to that effect. But a board of education shall not collect tuition for such attendance until after notice thereof has been given to the board of education of the district where the pupils reside. Nothing herein shall require the consent of the board of education of the district where the pupils reside, to such attendance.”
A jury was waived and the matter came on for hearing. The common pleas court of Carroll county found in favor of the board of education of the Carrollton
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village school district, and rendered judgment accordingly. Error was prosecuted to the Court of Appeals, which court affirmed the judgment of the common pleas court. Error is now prosecuted to this court to reverse such judgment.
Mr. Frank F. Cope, Mr. Daniel D. Oglevee and Mr. Don R. Sharp, for plaintiff in error.
Mr. I.K. Saltsman, prosecuting attorney, and Mr. R.E. McDonald, for defendants in error.
BY THE COURT.
The sole question for determination in this case is whether or not the distance between the residence of plaintiff in error and the school “to which they” (the children) “are assigned in the district where they reside” shall be taken by direct route or by the most direct route of public travel.
Section 7735, General Code, does not specifically provide the method of measurement. However, we are of opinion that the rule announced in Board of Education v. Board of Education, 58 Ohio St. 390, 50 N.E. 812, construing Section 4022a, Revised Statutes, being the original enactment of what is now Section 7735, General Code, should apply to measurements in this character of cases. In the per curiam in that case at page 394 of 58 Ohio State, 50 N.E. 812, 813, it is announced:
“The legislation provides for the convenience of children in attending school, and the distance is to be taken as they travel along the most direct public highway from the schoolhouse to the nearest portion of the curtilage of their residence.”
This rule was again recognized in Board of Education
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of Concord Special School Dist. v. Board of Education of Blue Ash Special School Dist., 88 Ohio St. 549, 105 N.E. 767, affirming Board of Education of Concord Special School Dist. v Board of Education of Blue Ash Special School Dist., 15 C. C. (N.S.), 521, 24 C. D., 213, which affirmed Board of Education of Blue Ash Special School Dist. v. Board of Education of Concord Special School Dist., 11 N. P. (N.S.), 286, 23 O. D., N. P., 698.
It is suggested that Board of Education v. Board of Education, 58 Ohio St. 390, 50 N.E. 812, supra, may be distinguished upon the theory that in that case property of intervening landowners had to be crossed by the children in going from their residence to the schoolhouse, in reaching the same by direct route; whereas, in the case at bar, the plaintiff in error’s children can reach the schoolhouse without going upon the land of others. We think, however, this distinction is not material, and that uniformity of application requires us to adhere to the rule of Board of Education v Board of Education, 58 Ohio St. 390, 50 N.E. 812, supra.
The judgments of the courts below will therefore be reversed, and final judgment entered for plaintiff in error.
Judgments reversed and final judgment for plaintiff in error.
MARSHALL, C.J., JONES, MATTHIAS, DAY, ALLEN, KINKADE and ROBINSON, JJ., concur.
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