State ex rel. Reynolds v. Nusbaum

• Citation: 115 N.W.2d 761,17 Wis.2d 148
• Parties: STATE ex rel. John W. REYNOLDS, Attorney General, Petitioner, v. Joe E. NUSBAUM, Commissioner State Department of Administration, Respondent.
• Decision Date: 05 June 1962
• Court: United States State Supreme Court of Wisconsin

Page 761

115 N.W.2d 761

17 Wis.2d 148

STATE ex rel. John W. REYNOLDS, Attorney General, Petitioner, v. Joe E. NUSBAUM, Commissioner State Department of

Administration, Respondent.

Supreme Court of Wisconsin.

June 5, 1962.

Petitioner attorney general seeks a declaratory judgment upholding the validity of ch. 648, Laws of 1961, and a peremptory writ of mandamus commanding respondent Joe E. Nusbaum, commissioner of the state department of administration, to approve a requisition made under this statute.

Ch. 648, Laws of 1961, was published on January 30, 1962, and by its terms will become effective on July 1, 1962, unless declared void by this court. This enactment amends sec. 40.53(1), Wis.Stats., to require certain public school boards to furnish transportation to non-public school pupils and to grant cities the opinion of providing transportation for these pupils, and amends sec. 40.56(3) to require payment of state aids to these school districts on account of such transportation.

The state superintendent of public instruction submitted to the state department of administration a requisition, dated February 28, 1962, for the printing of a blank form of report entitled 'Preliminary Report on Transportation of Students Attending Non-Public Schools in Wisconsin for the 1962-63 School Year.' On March 1, 1962, respondent, in his capacity as commissioner of the department of administration, by letter addressed to the superintendent of public instruction, declined to authorize the printing of the form on the ground that ch. 648, Laws of 1961, was unconstitutional. The following day, the attorney general petitioned this court for leave to commence an original action, which petition was granted on April 6, 1962.

In order to give this court a factual record upon which to weigh the constitutional implications of ch. 648, the parties entered into a stipulation of the facts deemed pertinent or material. Among the facts so stipulated are these:

Based upon United States census statistics for 1960, there are approximately 6,000 kindergarten pupils, 205,500 elementary school pupils, and 32,000 high school pupils attending approximately 850 to 875 nonpublic schools in Wisconsin. A substantial number of each category reside within cities in which school transportation is optional. Excluding schools located in cities in Milwaukee county, reports received from 51 out of a total of 58 county school superintendents disclose that there are approximately 500 non-public schools of elementary and high school level within the counties of such 51 county school superintendents. Of these approximately 500 non-public schools, about 60 per cent are located anywhere from across the street up to approximately one-half mile from the nearest public school of equivalent level; and about 20 per cent are from one-half mile to two miles therefrom. There are only 10 non-public schools in Wisconsin which are not operated by any religious, church or sectarian organization; and, of these, five are primarily boarding or residential schools, and the other five are within cities for which school transportation is optional. There are no non-public schools in the state which are operated for profit.

A substantial number of the state's non-public schools, particularly those in urban areas, presently do not provide bus transportation for their pupils. However, a good number of the pupils attending these schools do ride to school on buses arranged for in a variety of ways. Some such buses, although not a large number, are owned and operated by the school or religious organization operating the school; a larger number are contracted for by the school or the religious organization operating it; and some are contracted for directly by the parents of the attending pupils. In some instances, the cost of this transportation is paid by the parents; in others, it is paid partly by the parents and the remainder is included as an expense of the school or the religious organization operating it; and in still other instances the school, or the religious organization, bears the entire cost.

Presently, approximately 227,000 public school pupils, or approximately 32 per cent of all such pupils in the state, are provided with free transportation to and from schools. Of these, approximately 181,000 or 26 per cent of all public school pupils, live more than two miles from the public school which they attend. The average annual cost of providing public school pupils with free transportation is $64 per pupil.

It is further stipulated that the curriculum of the private schools in this state of elementary and high school grade, operated by religious or sectarian organizations, includes religious instruction and the saying of prayers. These non-public schools will hereinafter be referred to as parochial schools.

Upon these facts the parties have agreed to submit the question of the constitutionality of ch. 648 to this court.

John W. Reynolds, Atty. Gen., William A. Platz, James H. McDermott, Asst. Attys. Gen., Madison, for petitioner.

Foley, Sammond & Lardner, Marvin E. Klitsner, Thomas Ehrlich, David H. Fleck, Milwaukee, for respondent.

Charles J. Kersten, Milwaukee, Floyd A. Brynelson, Madison (Griffin G. Dorschel, Madison, of counsel), amici curiae.

CURRIE, Justice.

Prior to the amendment of sec. 40.53(1), Stats., by ch. 648, Laws of 1961, ¹ this statute required that school boards operating public elementary or high schools provide transportation to and from school for all pupils residing in the district two or more miles from the nearest public school they might attend, subject to the exception contained in sec. 40.55, Stats. Sec. 40.55, Stats. provides that secs. 40.53, 40.54, and 40.56 shall not apply to pupils who reside in cities, except that, if a city determines to furnish transportation on an optional basis, the same state aid shall be allowed as is provided by sec. 40.56. Because of the adoption of ch. 648, certain pupils attending approximately 500 non-public schools will be entitled to free transportation to and from the nearest public school they are entitled to attend.

The new enactment presents a question of statutory interpretation as to whether the phrase 'on regular routes approved for the public school bus,' in the law as amended, relates back to the word 'transportation' or whether it refers to the immediate antecedent phrase having to do with the residence requirement. To interpret the statute as requiring actual residence on the bus routes would lead to the absurd result that public school pupils who, prior to the passage of ch. 648, had walked to the bus routes, or had been transported there by their parents, would no longer be entitled to free bus transportation to and from school. It is a cardinal rule of statutory interpretation that an absurd result is to be avoided if possible. Wisconsin Valley Impr. Co. v. Public Serv. Comm. (1960), 9 Wis.2d 606, 615, 101 N.W.2d 798; Connell v. Luck (1953), 264 Wis. 282, 284-285, 58 N.W.2d 633. Therefore, we construe the statutory phrase 'on regular routes approved for the public school bus' as not requiring actual residence on the routes themselves of either the public or non-public school pupils who are to be entitled to free transportation under the amended statute. This interpretation also obviates the necessity of passing upon a denial of equal protection of the laws argument advanced by respondent.

In addition to the denial of equal protection of the laws contention thus resolved, respondent advances further reasons why ch. 648, should be held invalid as violating various provisions of the United States and Wisconsin constitutions. However, we find it unnecessary to consider any of these except that which asserts that this enactment violates that clause of sec. 18, art. I, Wisconsin constitution ², which provides: '* * * nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.'

We construe 'religious societies' to be synonymous with religious organizations, and, under the stipulated facts, practically all of the non-public schools, whose pupils are to be transported under the attacked act, are operated by religious organizations. Furthermore, at the time of the adoption of our constitution in 1848, the word 'seminaries' was synonymous with the academies or schools. State ex rel. Weiss v. District Board (1890), 76 Wis. 177, 215, 44 N.W. 967, 7 L.R.A. 330. Other courts have held that the term 'seminary' includes primary and secondary schools. County of Hennepin v. Grace (1881), 27 Minn. 503, 8 N.W. 761; Sisters of Mercy v. Town of Hooksett (1945), 93 N.H. 301, 42 A.2d 222. Therefore, inasmuch as some religious instruction is given in all of the approximate 500 non-public schools operated by religious organizations or sectarian groups, certain of whose pupils are to be transported under the act, these parochial schools constitute 'religious seminaries' within the meaning of sec. 18, art. I, Wisconsin constitution.

Because 60 per cent of these approximate 500 parochial schools located without the boundaries of cities are situated within distances which do not exceed one-half mile from public schools, it is fair to assume that a considerable number of pupils attending these schools will be afforded transportation under the new act if its validity is upheld. Those parochial schools, which now pay part or all of the cost of transportation of their pupils out of their school funds, stand to benefit financially by the operation of the new act. Others stand to gain through increased enrollment. Such an increase of enrollment is a benefit to these parochial schools. Judd v. Board of Education (1938), 278 N.Y. 200, 212, 15 N.E.2d 576, 118 A.L.R. 789; Visser v. Nooksack Valley School District (1949), 33 Wash.2d 699, 708, 207 P.2d 198. We quote with approval this statement of the New York Court of Appeals in the Judd case (...