I am unable to agree with the conclusions reached by my associates as to the statute involved in this case.
As indicated in the majority opinion, the case involves the interpretation of subdivision 4, chapter 206, Sess. Laws 1917, chapter 206, Sess. Laws 1917, and chapter 141, Sess. Laws 1915, are both amendments of § 1342, Comp. Laws 1913. That portion of § 1342 material to this controversy reads as follows:
"Section 1342. Every parent, guardian or other person who resides in any school district or city and who has control over any child . . . shall send or take such child to a public school in each year during the entire time the public schools of such district or city are in session; . . . provided that such parents . . . having control of any child shall be excused from such duty by the school board of the district or by the board of education of the city or village whenever it shall be shown to their satisfaction, subject to appeal as provided by law, that one of the following reasons therefor exists:"
Subsection 5, chapter 141, Sess. Laws 1915, an amendment to § 1342, reads as follows:
"(5) If no school is taught the requisite length of time within two and one quarter miles of the residence of such child by the nearest route, such attendance shall not be enforced, except in cases of consolidated schools, where the school board has arranged for the transportation of pupils. In school districts where consolidated schools have not been established, the school board shall pay a sum not to exceed *Page 727 thirty-five cents nor less than fifteen cents per day to any one family living more than two and one quarter miles from the nearest school, which shall be equitably based upon the number of children attending school from each family; provided that the tender of such daily compensation shall be construed as furnishing transportation, and when such a tender is made by the school board the compulsory attendance law shall apply to all children of school age living more than two and one quarter miles and not to exceed five miles from school."
Subsection 4, chapter 206, Sess. Laws 1917, amending § 1342, reads as follows:
"If no school is taught the required length of time within two and one quarter miles from the residence of such child, by the nearest route, the school board or board of education shall, except in cases of consolidated schools, pay for transportation a sum of not less than twenty-five cents (25c) nor more than fifty cents (50c) per day to any one family living more than two and a quarter miles from the nearest school, . . . or the boardshall furnish transportation or the equivalent in lodging ifacceptable to the family; and when such transportation is furnished, the compulsory attendance law shall apply to all children of school age living more than two and one quarter miles and not to exceed six miles from school. . . ."
The history of § 1342 and its amendments is set out in the majority opinion. It is to be noted that the purpose underlying this legislation is to compel attendance of children at the public schools. Under the provisions of chapter 127, Sess. Laws 1915, and amendments, school boards in districts having consolidated schools are required to provide transportation for the children residing more than two and one half miles from school. Chapter 141, Sess. Laws 1915, above quoted, required school boards in other districts to pay not more than thirty-five cents (35c) nor less than fifteen cents (15c) per day to each family having children of school age who live more than two and one quarter miles from the nearest school, and upon a tender of such compensation to such families, the children thereof were required to attend school if living not more than 5 miles therefrom. The school boards were required to pay. They had no choice. They could not, in such case, provide vehicular transportation regardless of the number of families that might be served if such transportation were provided by *Page 728 them. Chapter 206, Sess. Laws 1917, above quoted, obviated any difficulty that might arise in this respect. It provides that the school boards in other than districts having consolidated schools may, as their judgment dictates, either pay for transportation or furnish transportation, or, an equivalent in lodging if the latter shall be satisfactory to the family. The school board must do one of these things. The statute makes it optional which. The only option permitted the family of any child or children is as to whether, if the school board sees fit to provide transportation, or an equivalent in lodging, they will take the latter. It seems clear to me that this amendment was for the purpose of enabling the school board to exercise its judgment. I cannot read into it any intention that a family should be excused from sending its children to school because the school board exercises its judgment and chooses to pay the family rather than provide the transportation. It seems to me that too much force is given in the majority opinion to the use of the word "furnish," and not enough consideration given to the underlying purpose of the statute.
The school board must either pay or provide transportation or its equivalent in lodging. If it pays, it performs its whole duty, and yet, construed as the majority opinion construes the statute in question, the family receiving the compensation need not send its children to school unless such family sees fit. Certainly, such a result was not within the contemplation of the legislature. The judgment of conviction was proper. The application should be dismissed.