
    Boyce v. The Board of Education of Mount Carmel Special School District.
    
      Attendance at nearest school — Section 40220, Revised Statutes— Law requiring children to attend — School in resident district.
    
    Section 40220, Revised Statutes, does not require the board of education of a school district to admit children to 'a school outside of the district in which they reside unless the school in their own district is more than a mile and a half from their residence and more remote from their residence than the school to which admission is sought.
    (No. 9883
    Decided May 7, 1907.)
    Error to the Circuit Court of Clermont County.
    The plaintiff in error brought suit in the court of common pleas for a writ of mandamus to compel the defendants in error to admit his children of school age to the school located in Mount Carmel special school district. He alleged that the children resided with him in Beechwood special school district in Union township; that there is but one school in the district in which he resides which is located more than a mile and a half from the relator’s home and that that is the school to which his children are assigned. As ground for the claimed right to their admission to the school under the control of the defendants, he alleged, that the school controlled by the defendants is the nearest school to his residence outside of his own school district and in an adjoining school district. He admitted in his petition that the school to which his children are assigned is nearer his residence than that to which he sought to have them admitted, but alleged that if his children, were compelled to attend the school in the district where they reside they would be required to travel along a public highway which is shaded for a great distance with woods on either side, and quite lonesome and dangerous for children to travel without protection! The relator founded his claimed right to have his children admitted to the school controlled by the defendants upon Section 4022a, Revised Statutes, which is as follows:
    “When pupils live more than one and one-half miles from the school to which they are assigned in the district in which they reside they are entitled to attend a nearer school in the same district, or if there be no nearer school in said district, they may attend the nearest school in another school district, in all grades below the high school, and in such cases the board of education of the district in which they reside shall be compelled to pay the tuition of such pupils without an agreement to that effect, but a board of education shall not collect tuition for attendance as provided herein until after notice of such attendance shall have been given to the board of education of the 'district where the pupils reside, but nothing contained herein shall be construed to require the consent of the board of education of the district where the pupils reside, to such attendance; said tuition shall be paid from either the tuition or the contingent funds and the amount-per capita shall be ascertained by dividing the total expenses of conducting the elementary schools of the district attended, exclusive of permanent improvements and repairs, by the total enrollment in the elementary schools of the district, said amount to be computed by the month and an attendance any part of a month shall create a liability for the whole month. When the schools of a district are centralized or transportation of pupils provided, the provisions of this section shall not apply.”
    In the court of common pleas a demurrer to his petition was overruled and a peremptory writ of mandamus was granted according to his prayer. In the circuit court the judgment of the court of common pleas was reversed and the petition dismissed.
    
      Mr. Daniel W. Murphy and Messrs. Nichols & Nichols, for plaintiff in error.
    
      Messrs. Frasier & Hicks for defendant in error.
   By the Court.

Notwithstanding a manifest, want of care to express with precision the purpose of this legislation it is quite clear that the legislature did not contemplate any of the reasons assigned in the petition as- a sufficient cause for the transfer of attendance by children from the school in the district in which they reside to that of another district. It is equally clear from the language which the legislature has employed that the only purpose to be accomplished by the section is to relieve school children from the necessity of attending a school in their own district which is more than one mile and a half from their residence' if there is a nearer school in another district. Since the petition .admits that the school which is under the, control of the defendants is more remote from the residence of the relator than is the school of the district in which he resides, the circuit court correctly determined that the statute does not authorize the transfer.

Judgment affirmed.

Shauck, C. J., Price, Crew, Summers, Spear and Davis, JJ., concur.  