Standingwater v. School District No. 2

197 N.W. 928, 183 Wis. 356, 1924 Wisc. LEXIS 170

• Court: Wisconsin Supreme Court
• Decided: March 28, 1924
• Status: Published

Opinions

Owen, J.

This -action is founded on the same statute considered in Andrews v. School District, ante, p. 255, 197 N. W. 813, to which reference may be had for an understanding of the statutory provisions upon which respondent relies for his cause of action.

The appellant maintains that the complaint does not state facts sufficient to constitute á cause of action, because it does not appear that any of the children attended school for a period of five months as required by the provisions of sec. 40.16, Stats., to entitle a parent or guardian to compensation for transporting children to school. The transportation commenced on the 8th day of January, 1923, and ended on the 25th day of May, 1923, during which time school was maintained for exactly five school months. During this period no legal holidays intervened. While sec. 40.28 provides that the 12th and 22d days of February shall constitute legal holidays for schools, they were made so by the provisions of ch. 337, Laws of 1923, published July 6, 1923, after the period during which respondent transported the children. Sec. 40.16, upon which respondent relies for his compensation for transporting the children, specifically requires that the children while being so transported shall attend school for not less than five months. Respondent contends that this provision of the statute is satisfied if the children are enrolled pupils of the school during the five-months period even though they do not attend every day, that the actual attendance for 100 days is not required, and that the attendance of the children during this period constituted a substantial compliance with the statute.

We said in Andrews v. School District, supra, that sec. 40.16 was a beneficent statute and should be liberally construed, and we should be disposed to give the statute such a construction in this respect if it were open for construction. However, there is nothing ambiguous about the provision requiring five months’ actual attendance during the period of transportation to subject the district to liability therefor. This requirement is plain, definite, and certain. Its application' will enable the school-district officers .to determine the liability of the school district. To say that it does not mean actual attendance for. a period of five months, but that it contemplates simply that the child shall be registered as a pupil during such period, and that an attendance falling short of 100 days (which by the provisions of sec. 40.28 constitutes five school months) shall be considered a substantial compliance with the statute, would introduce an element of uncertainty requiring the school-district officers to exercise judgment as to whether the attendance amounted to a substantial compliance with the statute, and would open the door to favoritism. The legislature evidently had no such thought in mind. It intended to lay down a definite rule by which the right to compensation could be easily and definitely determined. It required the children to attend school for five months during the period of transportation. This means 100 days. Of course the period of transportation may include seven or eight months, but if the children actually attend 100 days, including legal holidays, during the period of transportation, the parent or guardian is entitled to compensation. In this case the period of transportation was only five months. It was therefore necessary for the children to attend school every day during the period of transportation in order to satisfy the requirements of the statute. It must be held that the complaint does not state a cause of action for compensation for the transportation of any of the children.

By the 'Court. — Order reversed, and cause remanded with instructions to sustain the demurrer.’