dissenting.
I must respectfully disagree with the conclusion reached by the majority opinion in this case because the use of general revenue county funds to provide a transportation subsidy for nonpublic school children is a matter of public safety. It does not involve any use of educational tax funds and does not involve the excessive entanglement with either church or state.
The transportation payments made by the Fiscal Court of Jefferson County for nonpublic school pupils does not violate KRS 158.115 or KRS 67.080(l)(a) or any section of the Kentucky Constitution. The payments are to supplement school bus transportation and for no other purpose. They merely supplement the nonpublic schools’ own funds for the transportation of pupils. The record in this case is uncontroverted and the circuit court found that public school pupils already receive adequate transportation through the tax resources of the local Board of Education.
A complaint was instituted in an attempt to compel the Fiscal Court to either continue special public school transportation subsidies for certain optional programs of the public schools or to terminate all public subsidies for nonpublic school students on the basis that such subsidies are unlawful. KRS 158.115(1) states in pertinent part that any county may provide transportation from its general fund to supplement the present school bus transportation system for the aid of any pupil of any grade who does not live within reasonable walking distance of the school. Consequently the Fiscal Court has statutory authority to provide such funds because the word “may” is ordinarily regarded as discretionary rather than mandatory. Skaggs v. Fyffe, 266 Ky. 337, 98 S.W.2d 884 (1937).
Although this case does not involve a federal constitutional question, I find the reasoning of Justice Douglas writing for a unanimous United States Supreme Court in Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed 563 (1955), to be persuasive when he stated that “the legislature may select one phase of one field and apply a remedy thereby neglecting others.” Cf. Delta Air Lines, Inc. v. Commonwealth, Ky., 689 S.W.2d 14 (1985) for the right of the state to classify.
The only unit omitted in this legitimate classification by the fiscal court is the program of optional instruction which is outside the regular public school attendance districts. There is nothing in the plain language of KRS 158.115 which prohibits the fiscal court from reimbursing directly or indirectly, nonpublic schools contractors who transport nonpublic school students who meet the standards established by KRS 158.115(1). The private agency may be used as a pipeline through which a public expenditure is made with the test being not who receives the money, but the character of the use for which it is expended. Kentucky Building Commission v. Effron, 310 Ky. 355, 220 S.W.2d 836 (1949). Here, the use is the safe bus transportation of nonpublic school students. Such expenditures are appropriated for a lawful purpose within the meaning of KRS 67.080(l)(a).
KRS 158.115 was enacted by the Kentucky General Assembly in 1944 in response to a *688decision of this Court in Sherrard v. Jefferson County Board of Education, 294 Ky. 469, 171 S.W.2d 963 (1942), which declared that a statute requiring Boards of Education to furnish transportation for nonpublic school students was in violation of the Kentucky Constitution because it was an expenditure of taxes collected for education. The constitutionality of the new statute was first upheld in Nichols v. Henry, 301 Ky. 434,191 S.W.2d 930 (1945).
Although not part of the holding, this Court acknowledged in Rawlings v. Butler, Ky., 290 S.W.2d 801 (1956), that money raised by taxation for education purposes by the Board of Education cannot be used in the transportation of nonpublic school children but that the fiscal court may pursuant to statute bear the expense of transporting children attending parochial or private schools. A straight per capita cost analysis for funding purposes was applied in the case of Board of Education of Jefferson County v. Jefferson County, Ky., 333 S.W.2d 746 (1960), which provided that none of the expenses of transporting nonpublic students comes from board of education funds.
Fannin v. Williams, Ky., 655 S.W.2d 480 (1983), which held unconstitutional a statute providing textbooks to children in nonpublic schools, drew a distinction between educational and health and safety purposes when it said “unlike the statute extending transportation to children in nonpublic schools, it is simply impossible to classify textbooks as anything but educational.” It is difficult to envision any religious meaning in transportation.
This.Court has stated that state educational tax revenues can be spent only to support public education but that transportation of nonpublie school students is actually a matter of health and safety and not education. Consequently, expenditures from the general funds of other agencies as distinguished from school or educational funds can be used for transporting nonpublic school students. A law is not automatically unconstitutional, even if it helps make the work of a religious organization easier or safer.
The Kentucky Constitution compels school attendance and requires the state to maintain an efficient system of common public schools and properly restricts all taxation for educational purposes to those common public schools. School attendance under our compulsory attendance law is a public purpose within the meaning of Section 171 of the Constitution. Providing transportation services to all school children, both public and private, for such attendance is also a valid public purpose. Such fiscal support is not an appropriation for educational purposes but rather a matter of public safety.
In reviewing a particular statute the meaning must be determined by the intent of the statute as gathered from the context. Smith v. Wilson, Ky., 269 S.W.2d 255 (1954). Smith, swpra, supports the proposition that based on the circumstances and the intent of the statute, the options listed provide opportunities and not limitations on the various ways in which the purpose of the statute should be implemented. Therefore there was no violation of KRS 158.115.
The possibility that sectarian religious issues could become part of a government sponsored academic program can sometimes lead to a need for supervision or surveillance of the academic program within the nonpublic school. This is the kind of entanglement which the Establishment Clause and the United States Supreme Court have sought to avoid. Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977), found that a statute which allowed public money to fund private school field trips was unconstitutional based on a violation of the First Amendment Establishment Clause of the U.S. Constitution. The U.S. Supreme Court determined that the public authorities would be unable to insure the secular use of the field trip funds without close supervision and that such oversight would create an unconstitutional church and state entanglement. Unlike Wolman, supra, there is no allegation in this case that the funding is used for any purpose other than transporting students to the school building. There is no religious purpose. Consequently, the public authorities are not required to meddle in the affairs of any nonpublie or religious organization. There is no excessive government entanglement with *689religion. See Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).
The majority opinion’s characterization of Lemon, supra, as helpful in deciding this case is interesting. Lemon set out a three-part test for determining when a state law did not violate the First Amendment to the Federal Constitution: The law must have a secular purpose; it cannot advance or inhibit religion and it must not foster an excessive entanglement of church and state. Observers of the United States Supreme Court have noted that in her concurring opinion in Board of Education of Kiryas Joel Village School District v. Grumet, — U.S.—, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994), Justice O’Connor remarked that “the slide away from Lemon is well underway.” Justice Scalia, in the same case, writing in dissent, noted that the Lemon rules have been twisted from superficial neutrality to outright hostility. Even using the Lemon test, the supplement to bus transportation has a clearly secular purpose in providing safety for school children, and it can hardly be said that it fosters excessive entanglement between church and state. Some believe that the future of Establishment Clause jurisprudence remains uncertain. Cf. University of Richmond Law Review, Case note, The Lemon Test Rears its Ugly Head Again, 27 U.Rich.L.Rev. 1153 (1993).
In the case of a local government supplement for school transportation there is no possibility that the bus program provides any academic material or even the possibility of religious instruction. There is absolutely no evidence in this record that a school bus ride for a nonpublic school child is anything other than what it is, a bus ride to a school building. Accordingly, school bus transportation is of a substantially different character with little or no opportunity to involve matters of religion and secular subjects thereby completely eliminating the need for governmental supervision which gives rise to excessive entanglement. Cf. Levitt v. Committee for Public Education and Religious Liberty, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736 (1973).
It should be obvious that any state aid to supplement bus transportation for nonpublic elementary school children is separate from any advancement of religious activities and provides no excessive entanglement between church and state. It would be very easy for an independent public auditor to make a limited audit of any expenses in connection with the school supplement using generally accepted accounting principles. The requirement of an audit which a fiscal court may wish to impose upon the transportation program is not an impermissible or excessive entanglement. Some level of governmental review of private school expenditures is constitutionally permissible. Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980), approved a state law which required nonpublie schools to submit to an audit of the vouchers and to verify the cost of reimbursed services and even permitted direct cash reimbursement to nonpublic schools. Such a funding mechanism was specifically approved as not in violation of the excessive entanglement principle. See also Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988); Effron, supra.
The contention that the fiscal court lost all control of the funds allocated to nonpublic schools is erroneous because this is a matter which does not involve academic instruction and is easily segregated. The conclusion that the aid to nonpublic schools was therefore unaccountable and resulted in direct aid to the nonpublic schools is mistaken. The only legal support cited for such a proposition is Wolman, supra, which is a case involving textbooks, testing services, speech and hearing diagnostic services, materials and equipment as well as field trip transportation. It was not the lack of control exercised by state officials that was critical in finding certain of the Wolman provisions unconstitutional but rather the ñatee of the use. Provision by the state of services unrelated to the religious roles of schools was permitted. The problem involved only those areas of state support which could be easily adopted to support both secular and nonsecular subjects. Such direct support would be inappropriate if the level of supervision required to prevent nonsecular use would require excessive entanglement. Committee *690for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973).
This case presents none of the difficulties of Wolman. As noted in Fannin, supra, the purpose of bus transportation is health and safety, not education. There is no significant risk that the support of nonpublic school bus transportation could be used for a religious function. There is also no need for excessive state supervision of bus transportation to determine that it is not used for a religious purpose. Such a method of funding is not constitutionally different from that approved by this Court in Effron, supra, which concerns state support for the construction of nonprofit, religiously affiliated hospitals. This is exactly the level of review and supervision approved in Wolman and Regan. If the decision in Wolman has any application at all in Kentucky, it supports rather than negates the- constitutionality of the supplemental transportation expenditures.
The fiscal court did not violate Section 5, Section 171 or 184 of the Kentucky Constitution when it provided supplemental funds for the transportation of nonpublic school students.
This Court said in Nichols v. Henry, 301 Ky. 434, 191 S.W.2d 930 (1946), that the statute does not violate Sections 5 and 171 of the constitution because the legislation for health and safety of children does not necessarily mean that the school might derive an indirect benefit. That fact alone is not sufficient to defeat the declared purpose and practical and wholesome effect of the law. See also Rawlings, supra.
Section 184 was not interpreted in either of those cases. It has no application here because the general funds of the county are the source of the transportation supplements and they are not raised or collected for education.
As noted earlier, the transportation of students to their respective elementary or secondary schools does not have a religious purpose nor a primary religious effect. Cf. Regan, supra 444 U.S. at 659, 100 S.Ct. at 849.
The majority opinion can be divided into two tracts: 1) it expresses a view that the transportation supplement is unconstitutional in application, and then 2) it determines that the application of any program would be unconstitutional ab initio because it gratuitously concludes that Section 189 of the Kentucky Constitution prohibits any fund or tax now existing may be used to aid any church, sectarian or denominational school. In reaching such a conclusion, it continues the approach that somehow by providing transportation, the religious school is assisted in the dissemination of denominational doctrine.
Any construction of Section 189 must be balanced with the application of Section 2 of the Kentucky Bill of Rights which provides for the right to worship Almighty God according to the dictates of individual conscience. The state may only infringe on the free exercise of religion when it does so in the pursuit of an overriding or compelling interest of the highest order, and only if it does so in the least restrictive manner possible. Cabinet for Human Resources, Ky. Health Facilities v. Provincial Convent of the Good Shepherd, Inc., Ky.App., 701 S.W.2d 137 (1986).
Section 5 of the Kentucky Constitution not only prohibits giving preference to any religious sect, but it also clearly states that no one should be compelled to send a child to any school to which he may be conscientiously opposed. Section 5 concludes by stating “no human authority shall, in any case whatever, control or interfere with the rights of conscience.” Parents who choose to send their children to nonpublic schools have long willingly borne a significant financial burden in order to follow their conscience. They certainly do not want any excessive entanglement with any state funds because with state money comes eventual state control.
Kentucky State Board for Elementary and Secondary Education v. Rudasill, Ky., 589 S.W.2d 877 (1979), Cert. Denied, 446 U.S. 938, 100 S.Ct. 2158, 64 L.Ed.2d 792 (1980) also stated that if the legislature wishes to monitor the work of private schools in accomplishing the constitutional purpose of compulsory education, it may do so by appropriate standardized achievement testing. Surely this principle could be applied to the totally nonacademic audit of funds used to provide supplemental payments for school bus trans*691portation. Such an audit would be nonintru-sive and would provide no entanglement with religion.
The majority opinion affirms the decision of the circuit judge in large part but it rejects the analysis of the circuit court in regard to Section 189. It would appear that the majority opinion provides a kind of selective approval in substituting its conclusion of law for that of the circuit judge. Any fair reading of the plain words of Section 189 shows that it relates only to taxes raised for educational purposes. This case does not involve funds raised for educational purposes. It merely involves general revenue funds from a county government. The majority opinion has set out a mistaken premise which obviously produces a mistaken conclusion.
I would reverse the decision of the trial judge because the Jefferson Fiscal Court has not violated the Kentucky Constitution in any regard, nor are KRS 158.115 and KRS 67.080 unconstitutional as applied to this case.
LAMBERT and REYNOLDS, JJ., join in this dissent.