I dissent. The conclusion reached in the opinion is most unfortunate. An unnecessarily narrow and legalistic analysis of terms is made, in contravention of the unmistakable and highly laudable purposes of the statute.
The opinion concedes that as the statute stood prior to 1933, remoteness or proximity to school grounds was not an absolute test, and that an improvement to school grounds might therefore be outside the actual grounds. This necessary concession answers its whole argument. The proposed construction makes the school grounds safer for children. If that is not an improvement, what is?
The statute of 1933, quoted in the opinion, seems designed to clarify this precise situation, and to give the school board the power to make improvements, including "pedestrian tunnels", regardless of whether they abut upon or adjoin the grounds. By use of the general words "immediate proximity" the legislature undoubtedly had in mind a rough check upon so-called improvements, which by reason of remoteness, could not be of material benefit to the grounds. Such terms as "immediate proximity", "immediate neighborhood", "immediate vicinity", and "adjacent", are elastic and indefinite. (See United States v.St. Anthony R.R. *Page 111 Co., 192 U.S. 524, 537 [24 Sup. Ct. 333, 48 L.Ed. 548]; Lewis v. Gollner, 129 N.Y. 227 [29 N.E. 81, 82, 26 Am. St. Rep. 516].) But these words have, in the opinion, been given a very clear and restricted meaning, and one which the legislature definitely did not declare. I think that the objects of the statute call for a more liberal interpretation of its language.
Rehearing denied.
Langdon, J., and Thompson, J., dissented.