(dissenting). I cannot agree to the interpretation of sec. 40.34 (1), Stats., declared by the opinion of the court. The opinion does not present the whole statutory picture. The subject of the statute as declared in the statutes and in all session laws in any way affecting it is “School Transportation.” The title of none of the several acts resulting in the present statute purports to give to parents the right to send their children to school outside their home district at the expense of the home district, or to give to children the right to attend school outside the home district at the home district’s expense. The subject of all these acts is transportation of children to school.
Only the third and fourth sentences of the section affect the instant case. These sentences read:
“The board shall provide transportation to and from school for all school children residing in the district and over two and one-half miles from the schoolhouse, in case of a common school and four miles in case of a union high school.
“And if it fails to provide such transportation the parents 'may provide suitable transportation for their children, and shall be paid therefor by the district, at the rate of twenty *109cents per day for the first child and ten cents per day for each additional child transported; provided, the child shall have attended not less than one hundred and twenty days during the school year unless prevented by absence from the district; provided further, that any child residing more than four miles from the school of his district may attend the school of another district, in which case the home district shall pay the tuition of such child.”
The first two clauses of the sentence last quoted plainly provide that if a high school board has failed to furnish transportation of children in the district residing more than four miles from the schoolhouse, the parent of children so residing may transport them and recover pay therefor from the district if they have attended one hundred and twenty days during the school year. That is, these clauses give to a parent the privilege of transporting his children himself and recovering pay therefor from the district if the district has failed to do its duty and the children have attended school one hundred and twenty days during the school year. The effect of the last clause of the sentence merely is to give the parent in the latter case the alternative privilege of sending his children to school outside the district and having the district pay their tuition. That is, in my opinion, the intent of the statute is to give the parent of children residing over four miles from the schoolhouse, in case the district fails to provide transportation, the right either to transport them himself and collect pay therefor from the district, or send them outside the district and have their tuition paid by the district in case they attend school one hundred and twenty days during the year. The statute merely imposes on the district, in case it fails to perform its duty to transport children to school, liability to pay the parent for his children’s transportation if he transports them himself, or to pay their tuition if he sends them to school outside the district. It seems to me unreasonable to say that the legislature intended that where the school district furnishes transportation of pupils *110living over four miles from the schoolhouse, the parent of children so living can send his children to school outside the district and compel the district to pay their tuition. This would throw upon the district, where it is furnishing transportation, both the expense of transportation of children to the schoolhouse and the payment of their tuition in another district. One.“cannot have his cake and eat it too.” The parent cannot have the privilege of transportation for his children to the home schoolhouse by the home district and also have the privilege of sending them to another district and have their tuition paid by the home district. The legislature did not intend to mulct a school district that is performing its duty as t.o transportation by compelling it to pay twice for the schooling of children within the district.
The argument, in the opinion of the court, that because the attorney general has given an opinion in accord with the opinion of the majority of the court and two legislatures have not amended the statute, the legislature has thereby acknowledged that the attorney general has expressed the intent of the legislature in enacting the statute, is not convincing to my mind. We cannot impute to the legislature knowledge .of the multitude of opinions ground out by the attorney general’s office. If the construction of the statute by the attorney general rests upon sound reason, it should be approved. If it does not so rest it should be rejected.
The complaint alleges that the children whose tuition is involved attended school in the plaintiff district for more than one hundred and twenty days during the school year. This is an acknowledgment that such allegation is essential to statement of a cause of action. With equal reason, and for the same reason, is an allegation essential that the plaintiff district failed to transport children living over four miles from the schoolhouse. Both are conditions precedent to a cause of action. If the children whose tuition is sued for have attended school in the plaintiff district one hundred and *111twenty days during the school year, and if the defendant district has failed to furnish means of transportation to pupils in the district residing over four miles from the schoolhouse, the plaintiff is entitled to recover. On omission to state either of these facts, the complaint fails to state a cause of action. It fails to state one of them. The demurrer to the complaint should have been sustained and the order overruling it should be reversed.