The question presented involves the construction of Section 4302 of our Code and nothing more.
The plaintiff filed with the defendant, as Superintendent of Public Instruction, a transcript of the proceedings before the County Superintendent and these have been incorporated in this record.
It is made to appear that the plaintiff is a resident of the Independent School District of Rutland in the County of Humboldt, and that he resides upon its border-line nearly two miles distant from the school house. He has two little girls five years of age. Across the road from the plaintiff's residence, and in the Maple Grove School District, is a one-room school house, 150 feet distant from the plaintiff's home. The plaintiff sought the privilege of sending his little girls to the Maple Grove School at the expense of the Independent School District of Rutland, pursuant to Section 4274, which provides as follows:
"4274. Attending school in another corporation — Payment. A child residing in one corporation may attend school in another in the same or adjoining county if the two boards so agree. In case no such agreement is made, the county superintendent of the county in which the child resides and the board of such adjoining corporation may consent to such attendance, if the child resides nearer a schoolhouse in the adjoining corporation and one and one-half miles or more from any public school in the corporation of his residence. Before granting such consent the county superintendent shall give notice to the board where the child resides and hear objections, if any. In case such consent is given, the board of the district of the child's residence shall be notified thereof in writing, and shall pay to the other district the average tuition per week for the school or room thereof in which such child attends. If payment is refused or neglected, the board of the creditor corporation shall file an account thereof certified by its president with the auditor of the county of the child's residence, who shall, at the time of the making of the next semiannual apportionment, deduct the amount from the sum apportioned to the debtor district, and cause it to be paid to the corporation entitled thereto."
The Maple Grove School indicated its consent, subject to the payment of a tuition of $144.00. The Independent School *Page 788 District of Rutland refused its consent to the payment of such tuition. The plaintiff thereupon sought the alternative consent of the County Superintendent. The result of the application was the refusal of the County Superintendent to give the consent prayed for.
From such refusal of the County Superintendent to give his consent, the plaintiff purported to appeal to the State Superintendent of Public Instruction. The statutory authority relied on in support of such appeal is Section 4302, which provides as follows:
"4302. Appeal to state superintendent. An appeal may be taken from the decision of the county superintendent to the superintendent of public instruction in the same manner as provided in this chapter for taking appeals from the board of a school corporation to the county superintendent, as nearly as applicable, except that thirty days' notice of the appeal shall be given by the appellant to the county superintendent, and also to the adverse party. The decision when made shall be final."
The defendant, as the present incumbent of the office, and in obedience to the construction put upon that section by the Department during the last forty years, held that the statute in question was not applicable to plaintiff's case. The statute has not hitherto received any construction by this court. This section is comprised in Chapter 219 of the Code. The caption of this chapter is stated therein as follows: "Appeal from Decisions of Boards of Directors". The chapter is very brief and contains six sections, — being Sections 4298 to 4303 inclusive. Section 4298 is as follows:
"4298. Appeal to county superintendent. Any person aggrieved by any decision or order of the board of directors of any school corporation in a matter of law or fact may, within thirty days after the rendition of such decision or the making of such order, appeal therefrom to the county superintendent of the proper county; the basis of the proceedings shall be an affidavit filed with the county superintendent by the party aggrieved within the time for taking the appeal, which affidavit shall set forth any error complained of in a plain and concise manner." *Page 789
Sections 4299 and 4300 provide the appellate procedure in the appeal from the decision of the board of directors to the county superintendent. Section 4301 confers power upon the county superintendent to subpoena witnesses; and likewise power to make findings of fact and directs that "he shall enter such findings in the record". Then follows Section 4302 above quoted. Section 4303 withholds power both from the county superintendent and from the state superintendent, to enter a money judgment. Such is the full scope of Chapter 219. It is confined in terms to appeals taken in the first instance from an order of the board of directors. Such an order is rendered appealable first to the county superintendent and from him to the state superintendent. This is not a case of that kind. The attitude of the school board of the Independent School District of Rutland, was not appealable to the County Superintendent. Manifestly for the same reason the attitude of the County Superintendent was not appealable to the State Superintendent. Chapter 206 is devoted to the subject: "County Superintendent". His many duties are detailed therein. No provision is made in any section thereof for an appeal from the County Superintendent to the State Superintendent, nor is there any provision in any other statute for an appeal to the State Superintendent from any original order or action of the County Superintendent in the performance of his statutory duties. The right of appeal to the State Superintendent is confined strictly to those decisions or orders that originate with the board of directors. It was the manifest legislative intention to limit to a small compass the quasi judicial power of such office. No practical reason is apparent why such office should be converted into a judicial tribunal. The exercise of judicial power could only duplicate the activities and functions of the courts; and this would be quite foreign to the larger educational purpose of the Department.
It is earnestly urged by the appellee that unless we hold Section 4302 to be applicable to his case, then he is without a remedy; that a right of remedy for every wrong is fundamental to our jurisprudence and that therefore a remedy by appeal ought to have been provided, and for that reason should be deemed to be provided by this section. As applied to this case the argument has its defects. If the plaintiff is entitled to an improvised *Page 790 remedy to redress a wrong inflicted upon him, then it is the function of the court to apply such rule. The plaintiff's grievance, if any, is that he has been deprived of some statutory right conferred upon him by Section 4274. The offending party, if any, is the County Superintendent of Humboldt County. If the plaintiff is entitled to an improvised remedy, he is entitled to it as against him. Why should we address a mandate to the State Superintendent? True, she is higher up in the official scale, but the real offender, if any, is closer to us. Why climb a tree when the opossum is on the ground? If the plaintiff is entitled to redress, as claimed, a mandate to the State Superintendent would be quite inadequate as a remedy. We could not thereby control her decision. If she were to affirm the action of the County Superintendent, the plaintiff would still be without redress.
This is perhaps a sufficient defense of the state of legislation on the subject. The fact that no provision is made for an appeal to the State Superintendent, in such a case as this, furnishes no basis of complaint to the plaintiff.
So far as Section 4302 is concerned, we hold that the construction long adopted by the Department of Education is the correct one.
The judgment of the district court is accordingly reversed.
STEVENS, De GRAFF, KINDIG, and GRIMM, JJ., concur.
MORLING, C.J., and FAVILLE, ALBERT, and WAGNER, JJ., dissent.