dissenting:
I am unable to agree with the majority of the court. In my opinion the complained of action of the School District was arbitrary and unreasonably discriminatory and the plaintiff was entitled to relief against such action.
I am entirely in accord with the general principle stated by the majority that the School District has discretion in providing transportation facilities in accord with the statute requiring free transportation when the pupils reside more than one and a half miles from the attendance center. I further agree that the statute does not require pupils to be picked up at their doorstep or immediately in front of their homes. However plaintiff made no such claim. The major thrust of his action is that the Randolph children were not provided bus service on the same basis as the service provided to other children similarly situated.
In 1959, the School District adopted the following motion as its bus transportation policy, “All regular pick up and discharge stations to and from buses for pupils of Community Unit School District No. 201, shall be only on a through way, all weather surfaced road.” Based on such policy the District in its affirmative defense alleged, “3. That the operating policy of the defendant Board of Education in furnishing free bus transportation to pupils limits the operation of buses under its control to highways having an exit at both ends thereof, and does not include operation on dead-end roads or lanes.”
So far as the general language of the District’s transportation policy quoted above is concerned the ordinary meaning thereof would appear to represent a reasonable exercise of discretion. However the application or interpretation of such policy as disclosed by the facts present different questions.
Counsel for the District in his argument in the trial court and in this court insists that so long as the children did not have to walk more than a mile and a half the District’s discretion was reasonable and was not subject to question. The District’s attorney neither denied nor endeavored to justify the uncontradicted evidence that bus service was provided for the children of two other families from in front of their houses when such houses were situated at the time of trial on roads which were not through roads and upon which the houses were located less than one and a half miles from a through road. The road beyond the hoúse of one of the families was described as a narrow dirt road without drainage not used by the family except in connection with the farming operation. It was also uncontradicted that the section of the road beyond this house was not either at the time of trial or prior thereto suitable for use by a school bus. It is uncontradicted that the other family living a similar distance from a through road as that of the plaintiff’s family, was at the time of trial not located on a through road but had been so located at some indefinite time in the past.
If as suggested by the majority there is something in the nature of non through roads which may justify differences in use by school buses the reasons which support such classification or distinction are equally applicable to the other two families described. Neither of such families lives on a through road as described in the transportation policy. As so interpreted the policy lacks a rational basis for classification and is therefore arbitrary and unreasonably discriminatory. Alternatively it can only be concluded the Board ignored its own rule and the unjustified disregard thereof is equally arbitrary and constitutes unreasonable discrimination.
In Flowers v. Independent School District of Tama, (Iowa, 1944) 16 N.E.2d 570, (cited in the majority opinion) the court approved the action of the School Board in limiting bus routes to main roads. As described by the court the reasons for approval of such action related to the limitation in the use of rubber and gasoline imposed by war conditions. Furthermore according to the court, “Appellee concedes this was not an attempt to discriminate against him.”
In State ex rel. Clarence Miller et al. v. Joint School Dist. No. 1, (Wisc. 1958) 92 N.W.2d 232, the court approved the discretion of the school board as reasonable again specifying, “There is no indication that the children mentioned in the petition were treated in any way differently from other children similarly situated.”
In People v. School Directors of Dist. No. 108, 58 Ill.App.2d 282, (cited in the majority opinion) tihe court apparently dismissed any claim of arbitrary or discriminatory action by the school board with the observation that consideration of the issue was unnecessary. The opinion in the foregoing case offers no particular support for the result reached by the majority and appears to have avoided discussion of issues which might have made the decision relevant to the case at bar. There is certainly no intimation by the court that children similarly situated may be treated differently.
In some aspects this case may be regarded as without any great significance. It involved only one family and no new or novel rule of law. Nevertheless the principle that citizens are entitled to equal protection of the laws is a principle of great substance and requires that courts firmly disapprove action of governmental agencies unreasonably discriminating between persons similarly situated. Suggesting that the result reached by the majority is authorized by rules relating to the issuance of writs of mandamus tends to obscure the real issue particularly where equitable principles and injunctive relief may be equally applicable.