The power conferred on township boards to alter the boundaries of school districts is restricted by two provisions of the law, one appearing in section 5656 and the other in section 5737, 2 Comp. Laws 1915. Both were amended by Act No. 351, Pub. Acts 1919.
1. The restriction contained in section 5656 before the amendment read:
"Except that no land which has been taxed for building a schoolhouse shall be set off into another school district for the period of three years thereafter, except by the consent of the owner thereof."
It now reads:
"Provided, however, That no land which has been taxed for building a schoolhouse shall be set off into another district for the period of three years thereafter except by the consent of a two-thirds majority of the resident owners of said land." *Page 335
Omitting the language unnecessary for the determination of the question here presented, they respectively read:
"No land * * * shall be set off * * * except by the consent of the owner thereof."
"No land * * * shall be set off * * * except by the consent of a two-thirds majority of the resident owners of said land."
It seems clear to me that, as the word "thereof" in section 5656 undoubtedly referred to the land sought to be detached, the words "resident owners of said land" in the amendment also refer thereto. The purpose of the provision before the amendment was perfectly plain. The land of a taxpayer which had been taxed for building a schoolhouse in one district could not be set off into another for three years thereafter without his consent. The purpose of the amendment, it seems to me, is also clearly apparent.
Let us suppose that district No. 1 in Bethany is composed of nine sections in the northeast corner of that township. District No. 4 in Pine River adjoins it on the north. An application is made to detach the northeast quarter of section one in Bethany from district No. 1 and attach it to district No. 4. The schoolhouse in Pine River is much nearer this land than the one in Bethany. A. owns the northeast quarter, B. the northwest quarter, C. the southwest quarter, and D. the southeast quarter, of the said northeast quarter of section one. B., C. and D., who have small children of school age, desire the alteration to be made, and consent thereto. A. refuses to consent. The lands owned by B., C. and D. could not be set off into the Pine River district without A.'s consent because it would leave his land in the Bethany district, and that district would not then be composed of contiguous territory, as is required *Page 336 by section 5648. Under the amendment, the change may now be made.
The determination, however, rests in the sound discretion of the township board. It may not be exercised arbitrarily. Under the old law an appeal might be taken from the action of the board of school inspectors to the township board (2 Comp. Laws 1897, § 4743), and the discretion thereupon became lodged in that body. Lord v. Every, 38 Mich. 405, 406. Under the law as it now is, an appeal may be taken by any five or more taxpaying electors to the county commissioner of schools and a circuit court commissioner of the county. 2 Comp. Laws 1915, § 5731;School District v. Green, 190 Mich. 371. This board of appeals shall "review, confirm, set aside or amend the action, order or decision of the township board or boards thus appealed from."
The use of the words "resident owners" is suggestive of the legislative intent. Unless an owner whose land will be affected by the alteration lives upon it, and presumably has children to attend a school, he may not give his consent.
The legislative history of the amendment is instructive. The bill as introduced in the house made no change in the language following the word "consent." It affected other parts of the section. The committee on education reported, recommending an amendment striking out the words "of the owner thereof " after the word "consent," and adding "of a two-thirds majority of the resident owners." When the bill was under consideration in committee of the whole, a substitute was adopted in which the provision read as now in the statute — "except by the consent of a two-thirds majority of the resident owners of said land." If the legislature intended by the amendment to make so radical a change as to provide that the consent, formerly required of the landowner affected, must now be given by two-thirds of the resident land-owners *Page 337 owners of the entire district, "we might expect to find a clear legislative expression to that effect." Board of Education v.Board of Estimates, 230 Mich. 495, 497. In my opinion, the provision is for the benefit of those whose land is sought to be detached, and not for the benefit of the other taxpayers of the district.
2. The other restriction requires the consent of a majority of the board of education of the plaintiff district, it being a graded school district. 2 Comp. Laws 1915, § 5737. The record shows that consent was refused. The statute provides:
"Provided, however, That any three or more taxpaying electors having children between the ages of five and twelve years, residing one and one-half miles or more from a schoolhouse in such district, feeling themselves aggrieved by any action, order or decision of the board of trustees with reference to the alteration of said school district affecting their interests, may, at any time within sixty days from the time of such action on the part of said board of trustees, appeal from such action, order or decision of such board of school trustees to the judge of probate of the county in which such schoolhouse is situated, in the same manner, as nearly as may be, as appeals from the action of the township board, as provided by chapter nine of this act. Said appellants shall file a bond with said judge of probate, with sufficient sureties to be approved by said judge of probate, in the penal sum of not exceeding two hundred dollars in the discretion of the court, indemnifying said school district of any and all costs made on such appeal in case the appellants shall not prevail therein. Whereupon said judge of probate shall be empowered to entertain such appeal, and review, confirm or set aside or amend the action of the board of trustees appealed from."
The words "residing one and one-half miles or more from a schoolhouse in such district" were eliminated by the amendment of 1919. I cannot agree with Mr. Justice FELLOWS in the construction he places *Page 338 upon this proviso. If the board of the graded school district refuse consent, "any three or more taxpaying electors having children between the ages of five and twelve years, feeling themselves aggrieved" by such refusal "affecting their interests," may appeal to the judge of probate.
The purpose of the appeal is to review the action of the board in refusing to consent that certain territory be detached from their district. Any three of those who feel themselves aggrieved, and whose interests are affected, and who have children between the ages of five and twelve, may appeal. If an appeal be taken, in my opinion it brings before the judge of probate the same question passed upon by the board of education, Shall consent be given to the detachment of the territory described in the application or petition presented to the board? The construction placed upon this proviso by Mr. Justice FELLOWS will, I think, in most cases, render it nugatory. If I am right in the construction I have placed on the proviso in section 5656, as amended, and the land of A. in the supposititious case presented may be set off without his consent, no benefit would accrue therefrom to B., C. and D., if their lands lie in a graded district and the board refuse consent, because, of course, A. would not join in the appeal, and action of the judge of probate would be futile without his doing so, for the reason stated.
In considering these several provisions, we must not lose sight of the purpose sought to be accomplished. InRoeser v. Gartland, 75 Mich. 143, 146, it was said:
"The object of the statute is to allow the inspectors to embrace within the district sufficient land upon which taxes may be laid to support schools, build schoolhouses, and defray the ordinary expenses, without being burdensome to the taxpayer; and also to bring the remotest residents of the district within such proximity to the schoolhouse as to enable their children to attend the school." *Page 339
There is a limit to the distance which young children may travel in order to reach a schoolhouse. The statute providing for compulsory education (2 Comp. Laws 1915, § 5979 et seq.) exempts from its provisions children "under nine years of age, whose parents do not reside within two and one-half miles, by the nearest traveled road, of some public school," unless transportation be furnished them.
Under the law as it existed prior to 1901, no district could contain more than nine sections of land. 2 Comp. Laws 1897, § 4646; Simpkins v. Ward, 45 Mich. 559. This restriction was removed by Act No. 37, Pub. Acts 1901, and there is now no limit to the amount of land which a district may contain. We may take judicial notice that in the northern part of the State unoccupied land situate five or six miles from a schoolhouse now forms a part of such district. I think it may be said that there is now no land in the State which is not included in a school district.
When a sufficient number of settlers go upon such land to justify the formation of a school district, application may be made therefor. A change in the location of the schoolhouse in a district long established may seemingly necessitate an alteration in the boundaries of several districts so that small children may be permitted to attend the school in the district in which their parents live without traveling much farther than they would if such change be not effected. The location of the schoolhouse in the plaintiff district is not shown in the record. It does appear that a part of the land sought to be detached from it lies within about half a mile from the schoolhouse in district No. 8 of Bethany, and, if plaintiff's schoolhouse be located near the center of the city of St. Louis, it is more than two miles therefrom.
It will be noticed that the appeal to the judge of probate may be taken only by resident taxpayers having *Page 340 children between the ages of five and twelve years. A number of taxpayers may desire the alteration, and apply therefor. If the consent of the graded school board be refused and an appeal, if taken, inures only to the benefit of the individual appellants, taxpayers who do not have children between the ages stated at the time may not have their lands set off, although some of their children may reach the age of five a few days thereafter.
In my opinion, the township board or boards should not be hampered in the exercise of the discretion conferred on them by the statute by a construction of its provisions which will render them powerless to act.
The establishment of graded school districts should be encouraged. A better school may be maintained therein. The sentiment in favor of the enlargement of districts is evidenced by the fact that advantage is being taken of the provisions of law for their consolidation (Comp. Laws Supp. 1922, § 5766). But such sentiment should not control in placing a construction upon provisions of law designed to afford opportunity for young children to attend school without traveling an unreasonable or unnecessary distance from their homes.
Under the law as I construe it, the interests of the graded district are carefully guarded. Should an application be made to detach territory from such a district, the consent of its board of education must be asked. If refused, an appeal must be taken by at least three taxpaying electors who have young children of school age, and whose interests are affected by such refusal. Should the judge of probate hold that such consent should have been granted, and the township boards, acting thereon, make an alteration in the boundaries of its district, an appeal may be taken from the order made to a board of appeals, heretofore referred to, and I think it may be safely assumed that *Page 341 the boundaries of a graded district will not be changed by this board unless such action be fully justified by the facts disclosed at the hearing before it.
The order of the circuit court should be reversed and set aside, and the action of the joint meeting of the township boards should be affirmed, with costs to appellants.
McDONALD, C.J., and CLARK, J., concurred with SHARPE, J.