State ex rel. Knudsen v. Board of Ed., Elmbrook Schools, Joint Common School Dist. No. 21
| Decision Date | 03 June 1969 |
| Docket Number | No. 267,267 |
| Citation | 168 N.W.2d 295,43 Wis.2d 58 |
| Parties | STATE ex rel. Allan C. KNUDSEN, Respondent, v. BOARD OF EDUCATION, ELMBROOK SCHOOLS, JOINT COMMON SCHOOL DIST. NO. 21, Appellant. |
| Court | Wisconsin Supreme Court |
H. J. Sanville, Milwaukee, for appellant.
Pfannerstill, Camp & Tyson, Wauwatosa, for respondent.
The trial court concluded that the duties of the school board under the statutes were absolute and, hence, their function was not discretionary but ministerial. On this basis he issued the writ of mandamus. In reaching this conclusion it appears that the trial judge failed to give due significance to the portion of the statute which we consider to be controlling.
Three requirements for transportation to a private school are set forth in sec. 121.54(2)(b)(2). As the trial judge pointed out, the school must be two or more miles from the student's residence and it must be either within the school district or not more than five miles beyond its borders. A third element is that it be 'the nearest available private school which the pupil may reasonably choose to attend.' The trial judge's decision makes it apparent that he interpreted the statute to mean that any school that lay within the geographical areas set forth in the statute was one which the pupil might reasonably choose to attend. We conclude, however, from a reading of the statute that the legislature did not intend to define a reasonable choice merely by these geographical limitations. The requirement that it be 'the nearest available private school which the pupil may reasonably choose to attend' is a separate and third requirement necessary to trigger the obligation of the school district to furnish transportation.
It is a cardinal rule of construction that a statute must be construed if possible so that every portion of it is given effect. Wilmot Union High School Dist. v. Rothwell (1965), 27 Wis.2d 228, 235, 133 N.W.2d 782. A statute should be so construed that no part of it is rendered superfluous by the construction given. Following these basic rules, meaning must be given to the phrase, 'the nearest available private school which the pupil may reasonably choose to attend.' It is perfectly clear that the choice of school is the pupil's, but whether that choice is reasonable is to be determined in the discretion of the school board.
State v. Walters (1933), 212 Wis. 132, 134, 248 N.W. 777, in interpreting an earlier statute not concerned with transportation to private schools, held that what is reasonable in compliance with the statutes was to be left to the school board. We deem that the determination of what is reasonable is a function of the board's discretion and should be based not only on the pupil's option of initial choice but also upon the school board's consideration of the reasons impelling the student's choice and whether the implementation of that choice by publicly furnished transportation accords with its responsibilities, including its duty to effectively coordinate its transportation activities 'to insure the safety and welfare of the pupils.' Sec. 121.56, Stats.
We thus conclude that the function of the school board is something more than ministerial. It requires a weighing of conflicting factors which may very well vary in accordance with the subjective needs of the student and the particular problems of the school district. This determination requires the exercise of discretion. While it is perfectly clear that the trial judge was correct when he concluded that the duty of a school board to furnish transportation was plain and imperative if all the statutory requisites were met, the school board's discretion must be invoked before that conclusion can be reached.
On numerous occasions we have stated that it is an abuse of discretion for a court to compel action through mandamus when the public officer's duty is not clear and unequivocal and requires the exercise of discretion. Menzel v. City of Milwaukee (1966), 32 Wis.2d 266, 145 N.W.2d 198, and cases cited therein. Mandamus cannot be used to compel specific action by a municipal body or officer where the action sought to be compelled is discretionary in nature.
We conclude that the trial court failed to take into account the discretionary nature of the power that was vested in the school board by sec. 121.54(2)(b)(2), Stats. Mandamus cannot properly be brought to compel the public transportation of all private school students merely because they fall within the geographical limits of the formula. However, to find error in the judgment of the trial court is to look at but one side of the coin. Although it is axiomatic that a court cannot compel an officer to perform a discretionary act in any particular manner, it is equally true that one vested with discretionary powers must implement those powers only with discretion and not as a result of arbitrary conduct. Where the legislature has conferred discretionry power on a legislative body or administrative officer, a court will not set aside an exercise of that power unless it is clear that the power has been abused or exercised beyond the limits conferred by the legislature. The failure to exercise discretion where required constitutes the abuse of discretion.
We conclude that the school board failed to exercise discretion when it arbitrarily determined that Sherry's choice of school was unreasonable. The stipulated facts make it clear that Sherry's parents had sent her to the Divine Savior High School at their own expense, including transportation costs, for at least a portion of her three years of attendance there; that she and her parents preferred the noncoeducational atmosphere of Divine Savior High School; that Divine Savior High School was closer to Sherry's home than Catholic Memorial, to which the school board was willing to provide transporation; and that a majority of the students who gave Divine Savior as their choice of school lived closer to it than they did to Catholic Memorial. We conclude, without expressing any opinion as to how the school board should act, that these reasons supporting Sherry's...
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