I am unable to agree with the majority opinion herein and respectfully dissent. As stated by the majority, the trial court relied upon our holding in Flowers v. Independent Sch. Dist.,235 Iowa 332, 16 N.W.2d 570, but the majority states that that decision does not purport to rule our decision herein. In this I feel that the majority is in error. While the same identical question was not involved, there was very forceful language in the Flowers opinion which seems to be controlling here. I think that the Flowers case was correctly decided, that we should adhere to the position there taken, and that the trial court was right in its interpretation thereof. *Page 143
In the Flowers case the statute was mandatory, as it is here. In that case as here bus transportation was curtailed to comply with orders of the ODT. In the Flowers case the curtailment required plaintiff to use other means of transportation for nine tenths of a mile to the bus route. Here it was alleged to be one mile. In the Flowers case, the mandatory duty to transport school children was imposed as to those living two and one-half miles or more from school. Section 4179, Code, 1939, involved herein, imposes a mandatory duty to provide transportation for children living more than a mile from school. In each case, therefore, had the child lived the same distance from the school that it did from the bus route, there would have been no duty to provide transportation.
In the Flowers case we stated, at page 334 of235 Iowa, page 571 of 16 N.W.2d:
"The purpose of the statute is to afford children living two and one-half miles or more from school substantially the same educational advantages as those living nearer. However, we do not think it should be strictly construed as requiring in all cases that a school bus stop at a point in the highway in front of the home of each child to permit him to enter or leave the bus. Within reasonable limits and without unreasonable discrimination, the board may determine the route and the times and places for bus stops to receive or discharge passengers. The statute should be given a reasonable and practical construction so that, without unnecessary burden to the school district, all children entitled thereto may be furnished transportation as nearly complete as is reasonably possible."
In so holding, this court quoted with approval the following language from the case of State ex rel. Brand v. Mostad, 28 N.D. 244,248, 148 N.W. 831, 832, to wit:
"* * * the only questions to be determined are whether the language * * * which provides for transportation `to and from school,' is to be strictly construed so that in all cases children must be actually conveyed from their house doors *Page 144 to the doors of the schoolhouse, or whether a reasonable discretion in such matters has been left with the school board. Also, whether, if such discretion exists, there was an abuse thereof in the case at bar.
"We are firmly of the opinion that the legislative intention was that actual transportation from the door of the home to the door of the schoolhouse should only be furnished as far as the same was reasonably practicable. In other words, that, though the statute is mandatory and cannot be avoided, it should be construed as if passed by reasonable men, and should be interpreted according to its spirit rather than according to its letter. * * *
"It must have been the intention of the legislature that some reasonable discretion should be exercised in the matter, and that, though conveyance from the house to the schoolhouse should be furnished as nearly as is reasonably possible, the letter of the statute should not be made the pretext for absurd and unreasonable exactions."
The trial court considered that the foregoing language recognized that the board had some discretion in complying with the mandatory requirements of the statute. By analogy the trial court determined that the same basic principle should apply to the compliance with the mandatory requirements of section 4179, Code, 1939. I think that the trial court was right.
The existence of such discretion is important here in determining whether plaintiff can recover without having made any demand on the school board before he furnished the transportation for which recovery was denied below. The majority opinion quotes from our opinion in the case of Dermit v. Sergeant Bluff Cons. Ind. Sch. Dist., 220 Iowa 344, 261 N.W. 636. That case is not in point. There the demand was made and refused before the transportation was furnished. That is not true here. Plaintiff did so plead, asserting, "this defendant failed to provide adequate transportation and after demand by the plaintiff for said transportation and refusal by said defendant, this plaintiff furnished, and continues to furnish, transportation for said child, a distance of one mile per day to the nearest connecting point with a school bus of *Page 145 said district." Had these facts been proved, then recovery would be warranted under our holding in the Dermit case. The prior demand and refusal would have constituted the basis for an implied contract to be enforced by the courts. But, in the absence of a prior demand and refusal, plaintiff must be deemed a volunteer. The trial court so held. I think it was right.
In so holding the trial court relied upon the case of Noble v. Williams, 150 Ky. 439, 150 S.W. 507, 42 L.R.A., N.S., 1177, wherein the court stated:
"According to the allegations of the petition the appellants, the plaintiffs, were hired to teach the public school in Jackson, Kentucky, for the fall term of 1908. The school board failed to pay rent for the schoolhouse, to buy the coal, to furnish the seats, crayons, blackboards, and the like, incident and necessary to the conduct of the school. Plaintiffs allege that they, in order to conduct the school, were obliged to and did pay the rent and buy the supplies. They allege no request by the school board that they should do so, nor any promise by the board to reimburse them. They sought to recover nevertheless, against the appellee board for these expenditures. The circuit court sustained a demurrer to their petition, and they appeal.
"The circuit court was right. The teachers, in contracting and paying these obligations, were volunteers. No man entirely of his own volition can make another his debtor. The school board could have been required by mandamus, at the suit of any proper party, to furnish a place for the conduct of the school. The teachers had no right to supply it themselves, and then recover the rent. They had their teaching contract; and if the board made it impossible for them to teach by failing to furnish a place for conducting the school, they had their right of action on their contract, subject to the customary principles involved in such cases. They adopted neither of these courses, but instead voluntarily paid an obligation which was not theirs."
It seems to me that the trial court correctly ruled that plaintiff herein, in furnishing transportation without first *Page 146 consulting the school board, acted as a volunteer and that there was no basis for raising an implied promise to pay for the transportation voluntarily furnished.
I would affirm.