People ex rel. Board of Education of School District No. 142 v. State Board of Education

MR. JUSTICE RYAN,

specially concurring: A writ of mandamus should issue only when the plaintiff has established a clear legal right to this extraordinary remedy. (White v. Board of Appeals (1970), 45 Ill.2d 378, 382.) Since I find no facts in the record which show a clear legal right in the plaintiff, I concur in the result reached by the majority that the action was properly dismissed.

Before reimbursement for transportation is made by the State, local school districts must meet certain procedural requirements. The applicable section of the statute (Ill. Rev. Stat. 1973, ch. 122, par. 29 — 5) requires that the board clerk or the secretary of the district certify the district’s claim for reimbursement to the county superintendent of schools. The county superintendent must then ascertain the district’s compliance with prescribed standards, approve the claim, and certify it to the State. There is no allegation in the record that these procedural requirements were satisfied.

Further, section 29 — 5 requires that the school to which students are transported must be one that “meets the standards for recognition” and that the transportation provided must meet various standards established by the State Board of Education. After carefully reviewing the record and briefs, I am unable to find any allegations of compliance with any of these standards.

While I concur with the result reached by the majority, I am unable to agree with some of the language and reasoning of the opinion. The claim for reimbursement was made under section 29 — 5 of the statute. This was not a claim on the common school fund made under section 18 — 8, and therefore the merits of plaintiff’s claim must be judged by the standards of section 29 — 5, not section 18-8.

Eligibility for payments from the common school fund under section 18 — 8 is predicated on maintaining “school as required by law” or maintaining “a recognized school.” A recognized school is defined in the same section as one that meets the standards as established for recognition by the Superintendent of Public Instruction.

Eligibility for reimbursement for transportation under section 29 — 5 requires that the school to which the students are transported be one that “meets the standard for recognition as established by the Superintendent of Public Instruction,” and the transportation provided must also meet certain other standards relating to transportation which are also established by the Superintendent of Public Instruction. The criteria for payment under the two sections of the School Code do not necessarily coincide.

We have not been informed whether or not compliance with section 29 — 4 is one of the standards of recognition established by the Superintendent of Public Instruction, nor have we been informed whether or not compliance with section 29 — 4 is one of the transportation standards established by the Superintendent. I am therefore not able to say whether or not the funds were properly withheld. We do not reach that question because as noted earlier the plaintiff has not alleged facts which show a clear legal right to the remedy sought.

The majority opinion states that our decision in Board of Education v. Bakalis (1973), 54 Ill.2d 448, sustained “the defendant’s power to withhold all State funds.” I do not feel that the issue of withholding all State funds for failure to comply with section 29 — 4 was squarely before us then, and consequently I must disagree with the majority’s interpretation of the holdings of that case.

MR. JUSTICE UNDERWOOD joins in this special concurrence.