It is to be confessed at the outset that the presently existing school laws are a hodge podge rather than a systematic evolution and development. Amendments and additions have been frequently made without reference to their effect upon co-ordinate or related statutes. From the beginning, however, there has been established and recognized a definite policy of general and reasonably uniform system of public education throughout the State. The right of the child to an education, and the duty of the State to furnish it, are not committed to localities or left to local control subject to local factionalism, prejudice or penuriousness. By the Constitution of the State "The board of education shall provide for the education of all the youths of the State, through a system *Page 791 of common schools * * *" Article 9, Section 12. By the Code of 1851 and the laws included in the Revision of 1860 the power, authority and discretion of the local boards were quite limited. In 1858 an act was passed "to provide a system of common schools." It was amended by an act taking effect March 1, 1860, (Revision, 1860, Section 2022 et seq.) These acts provided for a county superintendent of common schools whose duties were principally to examine and grant certificates to teachers, to revoke them and to "serve as the organ of communication between the secretary (of the board of education) and township or district authorities." Revision, 1860, Sections 2066 to 2073. The first provision for appeals seems to have been that made by the act of December 24, 1859, permitting any person aggrieved by any decision of the district board of directors in matter of law or of fact to appeal to the county superintendent. Revision, 1860, Section 2133. This act provided: "An appeal may be taken from the decision of the county superintendent to the secretary of the board of education, in the same manner as provided in this act for taking appeals from the decision of the district board to the county superintendent, as nearly as applicable, except * * *" Section 2139. It may be that at the time of the passage of this act the county superintendent had no authority which would furnish any one with a grievance other than the authority to entertain and act on appeals granted by that statute, and that the statute then would be inapplicable to any case except to a decision of the county superintendent on appeal from the district board of directors and that consequently there would be no other occasion for appeal from the county superintendent to the secretary of the board of education. By Chapter 52, Laws 10th G.A., approved March 19, 1864, the board of education was abolished. The secretary of the board of education went with the board. That act provided for a superintendent of public instruction. By Section 5 he was charged with the general supervision of all the county superintendents and all the common schools of the State, and required to "determine all cases appealed from the decision of the county superintendents." Here was the establishment of a new office charged with general supervision of all county superintendents and with the duty of determining "all cases appealed from the decision of the county superintendents." *Page 792 How was his supervision to be exercised? Authority to appeal to him was recognized and the duty to determine "all cases appealed from the county superintendents" enjoined. No limitation upon appeals was provided. This act was amended by Chapter 162, 12th G.A., Section 2, which provided that the superintendent of public instruction "shall be charged with the general supervision of all the county superintendents and all the common schools of the State. * * * He * * * shall determine all cases appealed from the decision of county superintendents." By the Code of 1873, Section 1577, these provisions in the act of the Twelfth G.A. were re-enacted as were Sections 2133 to 2140 of the Revision. The latter sections formed a separate chapter of the Code of 1873 and must be construed in connection with the intermediate legislation providing for superintendent of public instruction and imposing on him the duty of determining "all cases appealed from the decision of county superintendents." Between 1873 and 1897 many laws affecting the duties of Stale and county superintendents and boards of directors were enacted. These laws were codified by the enactment of the Code of 1897. Section 2740 required that "the county superintendent shall see that all provisions of the school law, so far as it relates to the schools or school officers within his county, are observed and enforced, specially * * *" By Section 2791 it was provided where by reason of natural obstacles any portion of the inhabitants of any school corporation in the opinion of the county superintendent could not with reasonable facility attend school in their own corporation "he shall, by a written order, in duplicate, attach the part thus affected to an adjoining school corporation, the board of the same consenting thereto * * *" The board of the district of the residence of the pupil was given no discretion as it formerly was. (Code, 1873, Section 1707; Independent District v. Independent District,62 Iowa 616.) By Section 2803 a child residing in one corporation might attend in another if the two boards so agreed. If no agreement was made the county superintendent and the board of the adjoining corporation might consent if the child resided nearer a school house in the adjoining corporation and one and one-half miles or more from any public school in the corporation of his residence. The county superintendent was required to give notice and hear objections. The board of the *Page 793 district of residence was required to pay tuition. The former provisions relating to appeals were no longer made the subject of a separate chapter. The language of Section 2820 is general:
"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 * * *".
By Section 2623 the State superintendent was still required to "determine all cases brought before him on appeal from the decisions of the county superintendents." These sections must be construed together and in harmony with the policy of the law. The duties of the county and state superintendents are largely administrative, partly quasi judicial. The district is compelled, in certain cases, to provide not merely its own facilities but pay for education elsewhere. The purpose of the law cannot be adequately realized if its execution depends on the discretion of the board of the residence. We do not undertake to express an opinion upon the facts. As an illustration, however, we may use plaintiff's allegations, namely, that he is a farmer and his residence is within about 150 feet of the school house of an adjoining district and over two miles from the school house of his own district; that his children of school age are two five year old girls; that his school district refuses to furnish transportation; that the highway over which his children would have to travel to the school house of his own district is a main highway between two towns on which there is much automobile traffic and which passes over a railroad track and by stock yards and which is impassable at times every winter. Among the school district's contentions are: It does not furnish transportation; to require it to pay tuition to some other district will result in a loss of money and in its not maintaining as good a school as it is now seeking to maintain; that for the good of the children and the good of both school corporations the application should be denied. The school district is an independent school district, the tuition $144, the plaintiff's tax $59.42. In this connection may be mentioned the present statute by which the county superintendent is elected by a convention composed principally of the presidents of the school boards or their representatives. *Page 794 The policy of the law is uniformity in the administration of the public schools throughout the State to the end that every child shall have access to the public schools and without undue inconvenience. With these provisions to insure convenience in attendance, attendance has been made compulsory. The parent, under penalty, is compelled with certain exceptions to provide for attendance. Code Supp., 1913, Section 2823-a, et seq.; Code, 1927, Chapter 228. One of the exceptions to Section 2823-a, Code Supp., 1913, was in case of any child who lived more than two miles from any school where no transportation at public expense was provided. It is significant that that exception has been eliminated. Code, 1927, Section 4411. While some codifying acts are provided for the Code of 1924, Sections 2818 and 2820, Code, 1897, are still the law. Their present arrangement in the Code of 1927 is editorial and not legislative.
Admittedly if the board and the county superintendent make their respective decisions consecutively appeal to the State superintendent would lie. Here there is the decision of one of the boards and of the county superintendent, only the decisions are concurrent instead of consecutive.
Without further elaboration it seems to me that construing the present statutes as a whole Section 2820, Code, 1897, provides for an appeal by any person aggrieved in all cases from the decision of the county superintendent to the superintendent of public instruction.
I think the majority confine their attention to too small a part of the statutory law and put too narrow a construction on it without reference to the intent of the legislature, the policy of the law and the general legislation on the subject. While the one section reads "an appeal may be taken from the decision of the county superintendent" it is broad enough to include all decisions. It should be construed not merely in connection with and as limited by Section 4298 but in connection with all the statutes in pari materia and with the policy of the public school laws in their entirety.
This may be further illustrated by supposing that the county superintendent's decision were adverse to the residence district and it would thereby be compelled to pay tuition or cost of transportation. In harmony with the spirit, and in the execution of the purpose, of the law it would have the right to appeal. *Page 795
II. The case was submitted to the lower court on motion to dismiss. This motion was in no part based upon and did not raise the question of administrative construction. I find no such general, notorious or settled construction of the statute by the department of public education as to call for the application of the rule of settled, administrative construction. See Graf v. Employers L.A. Corp., 190 Iowa 445; 23 C.J. 100. The appeal of Davis v. District Township, as found in Iowa School Laws Decisions of 1929, Page 341, does not reach the point and falls far short of establishing the administrative construction contended for.
III. It may be that the superintendent of public instruction on taking jurisdiction would hold that no abuse of discretion on the part of the county superintendent is shown, but that does not affect the question of her duty to take jurisdiction and to pass upon the merits of the appeal. The propriety of the exercise of the discretion of the county superintendent may be determined by the state superintendent. Clay v. Independent School District,187 Iowa 89, 100; School District v. Independent District,149 Iowa 480, 488. I think the judgment should be affirmed.
FAVILLE, ALBERT, and WAGNER, JJ., join in this dissent.