(dissenting). Ch. 648, Laws of 1961, presents this court with a difficult and delicate problem. The legislature has seen fit to modify the existing line of accommodation between the rights and interests of those who support and attend parochial schools and the rights and interests of those who make a different choice. This court must decide whether this modification upsets the balance between these various rights and interests effected by the provisions of our constitution with respect to religious freedom and separation of church and state.1
Our constitution laid upon the state the task of providing a system of public schools and our statutes have so provided. Public schools now serve about 700,000 children. Parochial schools serve about 240,000. Most are Catholics, some Lutheran, and a few Seventh-day Adventists. I am sure that these schools are being supported for the most part at substantial financial sacrifice by those families whose religious faith and conscience make it important to them to do so.
It is assumed that the right of parents to send their children to parochial schools is protected by the federal constitution.2 The constitution of Wisconsin provides in sec. 18, art. I:
*167“The right of every man to worship Almighty God according to the dictates of his own conscience shall never be infringed; . . . nor shall any control of, or interference with, the rights of conscience be permitted, . .
The existence of parochial schools is presumably an implementation of the rights protected by these portions of sec. 18. Attendance at a “private” school is expressly recognized as a fulfilment of the compulsory school-attendance law of the state.3
On the other hand, sec. 18, art. I, also provides:
“. . . nor shall any man be compelled to . . . support any place of worship, . . . nor shall any money be drawn from the treasury for the benefit of religious societies or religious . . . seminaries.”
These provisions, however, have not meant that the laws must be completely sterile of benefit to religious societies or parochial schools. As recognized in the majority opinion, traditionally such support and benefit as is implicit in tax exemption both of gifts to, and property of religious bodies has not been thought to violate sec. 18, art. I, Wis. Const.
Bus transportation of school children, though of course unknown in 1848, has become commonplace and virtually a necessity where other means of public transportation are not available. The use of public money to provide such transportation is not invalid as devoting public money to a private purpose, even though parents are thereby relieved of the cost which they might otherwise have to bear, upon the theory that the safety and welfare of school children are thus protected.4 Highway networks, the use of buses, and consolidation of public school districts have grown side by side. By enlarging public school districts, we have recognized *168that a better school can be provided more economically when the area from which the children come is large enough to support it, and the use of school buses rather than the provision by the parents of transportation individually helps make such enlargement feasible. Presumably the same facts of life exert similar pressures on parochial schools.
The majority of the court finds that because the new transportation authorized by ch. 648, Laws of 1961, will be virtually confined to transportation of parochial school students, a classification has been drawn in terms of religion, citing the reasoning of Mr. Justice Jackson in Everson v. Board of Education 5 and the conclusion of Professor Kur-land,6 that the freedom and separation clauses should be read as prohibiting classification in terms of religion either to confer a benefit or to impose a burden.
The quoted principle is sound, but I cannot agree that secs. 40.53 (1) and 40.56 (3), Stats., as amended by ch. 648, Laws of 1961, create a classification in those terms. The amendment effected by ch. 648 adds parochial school children to the class benefited, but if the amendment were given effect, the total class receiving equal benefit would consist of all school children, without regard to attendance at public or parochial schools.
Before enactment of ch. 648, Laws of 1961, the legislature compelled each school district to say, in effect, to each school child within the district: “You are free to attend the public school. You are also free to use the bus transportation we furnish in order to attend. You are free to attend a parochial school if you so choose. But if you do not attend the public school you cannot use the bus transportation we furnish.”
Ch. 648, Laws of 1961, would make this change: “You are free to use bus transportation to the public school whether *169you attend the public or a parochial school. If you choose to attend a parochial school, we will furnish you the identical transportation service to the same place that we provide your neighbor who attends the public school, no more and no less.”
Under the law as amended by ch. 648, Laws of 1961, the exercise by parents of their right to send their children to parochial schools would no longer be burdened with the expense or difficulty of providing transportation for them if the parochial school attended is so located that the child can take advantage of bus transportation to the public school. Such children would receive the transportation in the interests of their safety and welfare whether or not similar transportation had previously been provided for them. The line of accommodation referred to earlier is modified by ch. 648 in this respect, but in no other.
As to the school child whose conscience impels him to choose to attend a parochial school, and as to his parents, ch. 648, Laws of 1961, is an implementation and protection of his and his family’s religious freedom. The question for the court, of course, is: “Does the law destroy or impair constitutionally protected rights of others?”
On the face of the law, I can find no suggestion of such impairment. Unlike the laws held invalid in all but one of the cases from other states relied upon by the majority, ch. 648, Laws of 1961, does not provide for bus transportation directly to parochial schools. Thus it does not raise some of the questions which might be raised by such a provision: (1) Whether parochial school authorities might be thought to have a degree of control over the public school buses in working out routes, schedules, and the like; or (2) whether a forbidden burden might be imposed upon the public treasury because of greater cost of transporting students directly to parochial schools rather than to the public schools they would otherwise be entitled to attend, or (3) whether *170the majority referendum vote in 1946 against a proposed amendment to the constitution with respect to school transportation effects an interpretation of the constitution as prohibiting transportation to nonpublic schools in the absence of amendment.7
The majority has concluded that the fact that some of the cost of transportation of school children to parochial schools is presently borne by religious associations or by parochial schools, and the fact that ch. 648, Laws of 1961, would relieve those particular associations and schools of such expense, would result in ch. 648 conferring a benefit on those religious groups which cannot be constitutionally provided by an expenditure of public funds.
We do not know in how many cases such financial benefit flows to the religious association or parochial school rather than directly or indirectly to the parents of the children. That some indirect and incidental advantage of this type will accrue to some religious groups or parochial schools which now do or might in the future provide bus transportation themselves, I have no doubt. But I do have serious doubt that the type of advantage just referred to is the type of benefit which is forbidden by the constitution. This advantage results incidentally to the religious group from the benefit conferred primarily on the children themselves, and on their parents. It is, of course, not identical to, but it has *171some similarity to the advantage flowing incidentally by reason of the paving of good highways providing access to a parochial school or a church.
An even-closer analogy is the benefit which would accrue to the parochial school whose pupils attend some classes in the public school system. The majority opinion attempts to distinguish that situation from transportation. Yet in both situations public funds redound to the benefit of the parochial school, which is thereby relieved of an obligation it itself has assumed, and which is better able to attract students because of such expanded-course offerings.
The transportation furnished is identical to that which is furnished to children attending public school and which would be furnished to the very same children now attending parochial school if they did not choose to continue to do so.
An argument made by the respondent but not dealt with by the majority is that ch. 648, Laws of 1961, would impair the rights of those parochial school children who would not be able to use the bus transportation provided because the parochial school which they attend is not near enough to the public school they would be entitled to attend so that they could use the bus transportation to advantage. It seems to me that this argument can be disposed of on several grounds, one at least being that the attendance at a parochial school is a matter of choice, and the child who chooses to attend a parochial school so located that he could not use the public transportation afforded under ch. 648 would not be entitled to complain that other children choosing to attend parochial schools close to the public school they were entitled to attend could make use of it with advantage.
Members of the legislature mindful of their oaths of office must have determined that the amendment to the statutes which they devised would lie within constitutional limitations *172and the fact that they enacted the law entitles it to a presumption of validity.8
I recognize that whether ch. 648, Laws of 1961, violates the portion of sec. 18, art. I, Wis. Const., forbidding use of public funds to confer a benefit on a religious group is a serious question. It seems to me, however, that this is a proper case for the application of the rule that a statute will be held unconstitutional only when it so appears beyond a reasonable doubt.9 It seems to me that the question of whether unconstitutional benefits are conferred on religious groups is in the field of doubt, and therefore the legislature’s conclusion that the law as amended by ch. 648, Laws of 1961, is wise ought to prevail.
I am authorized to state that Mr. Justice Hallows concurs in this opinion.
The question before us arises only under the Wisconsin constitution. The supreme court of the United States has decided that a state does not violate the constitution of the United States by furnishing transportation of children to parochial schools. Everson v. Board of Education (1947), 330 U. S. 1, 67 Sup. Ct. 504, 91 L. Ed. 711, 168 A. L. R. 1392.
Pierce v. Society of Sisters (1925), 268 U. S. 510, 45 Sup. Ct. 571, 69 L. Ed. 1070, 39 A. L. R. 468.
Sec. 40.77, Stats.
Everson v. Board of Education, supra, footnote 1.
Supra, footnote 1.
Kurland, Of Church and State and the Supreme Court, 29 University of Chicago Law Review (1961), 1, 2.
For some reason the amendment proposed by Jt. Res. No. 78, 1945, would have amended sec. 3, art. X, Wis. Const., simply providing that the prohibition against sectarian instruction shall not bar the legislature from providing for transportation to any school, and would not have amended sec. 18, art I. The question on the ballot, however, was stated more directly as: “Shall section 3 of article X of the constitution be amended so as to authorize the legislature to provide for the transportation of children to and from any parochial or private school or institution of learning?”
11 Am. Jur., Constitutional Law, pp. 791, 792, sec. 129.
White House Milk Co. v. Reynolds (1960), 12 Wis. (2d) 143, 106 N. W. (2d) 441; School Dist. v. Marine Nat. Exchange Bank (1960), 9 Wis. (2d) 400, 101 N. W. (2d) 112; Borgnis v. Falk Co. (1911), 147 Wis. 327, 133 N. W. 209.