#### Andrews, Respondent, vs. School District No. 1 of the Town of Knapp, Appellant.

*February 14*

March *11, 1924.*

*Schools: Transportation of children: Construction of statute: Compensation: Conditions precedent: Attendance of children: How long required: Furnishing conveyance only: Sitfficiency of conveyance.*

1. Sec. 40.16, Stats., providing for compensation to a parent or guardian who transports children living more than two miles from school, is a beneficent statute, in the interest of education, and must be liberally construed to accomplish the purpose intended, p. 257.

2. A provision for such compensation if the school is attended by the children for not less than five months while being transported does not require 100 per cent, consecutive attendance, but merely requires that they attend school for more than five school months (100 days) during the time of transportation. , p. 257.

3. Said sec. 40.16 does not require the physical presence in the conveyance of the parent or guardian, which may be driven by one of the children if of sufficient age to safely transport the others, p. 258.

4. Noncompliance with sec. 40.73, Stats., which requires parents to see that their children attend school six months during the year, does not defeat a parent’s right to compensation, under sec. 40.16, for transporting his children to school if they attend five months, p. 258.

5. Transportation of five children to school in a single-seat open buggy in a sparsely settled community is not an insufficiént compliance, as a matter of law, with sub. (1) (b), sec. 40.16, Stats., requiring as a condition precedent to recovery of compensation therefor that the transportation furnished by the parent or guardian be safe, comfortable, and convenient, p. 259.

Appeal from a judgment of the circuit court for Jackson county: E. W. Crosby, Circuit Judge.

*Affirmed.*

The cause was submitted for the appellant on the brief of *Graham & Moran*of Tomah, and for the respondent on that of *Perry & Perry*of Black River Falls.

*256Owen, J.

Sub. (1) (b), sec. 40.16, Stats., authorizes school districts to provide transportation for children to and from school, and that where such transportation is not provided for children living more than two miles from the school, “the parent or guardian of any such child may transport him to and from school in the home district or to and from a school in an adjoining district, and shall be paid for such .services by the district in which he resides at the rate of forty cents per day for each child so transported, provided the child while being so transported attended school for not less than five months. In all such cases the transportation must be safe, comfortable and convenient.”

The respondent resided more than two miles from the schoolhouse. He had five children of school age. The oldest was a girl of the age of fifteen years. He furnished the children with a horse and a single-seat open buggy. Three children rode in the seat and two behind. The two children sometimes sat in the rear end of the buggy and sometimes on a board across the buggy, and sometimes they' were strapped or tied onto the seat. The horse was left in a barn one quarter of a mile from the schoolhouse, and the children walked from the barn to the schoolhouse a portion of the time, while upon certain days the oldest daughter, who drove the horse, left the younger, children at the schoolhouse and took the horse back to the barn. The children commenced attending school in September and ceased so attending during April of the following year.

The respondent presented a claim to the school district board for the allowance provided by the statute above mentioned for such transportation. The school district board refused to allow 'the claim, and respondent brought this action. The case was tried before a jury. By a special verdict the jury found that the transportation furnished to the children was a comfortable and convenient means of transportation; that they each attended school more than *257100 days; that the father or mother drove the conveyance seventeen days and the elder daughter 102j^ days. Upon this verdict judgment was rendered in favor of respondent.

The appellant school district urges numerous grounds for a reversal of the judgment. It is first claimed that to entitle the respondent to recover it is necessary that each child attended school for five consecutive months and that each child attended twenty days in each month, unless a valid excuse was offered for sickness, of which there is no proof. To say the least, the maintenance of such a contention calls for a very strict construction of the statute and, in fact, for a construction wholly, unwarranted by its language. This is a beneficent statute, a statute in the interest of education, and it is to be liberally construed for the accomplishment of the purpose intended. The statute provides that the parent or guardian shall be paid for such services by tiie district in which he resides at the rate of forty cents per. day for each child so transported, provided the child while being so transported attended school for ■not less than five months. There is nothing here that calls for a one hundred per cent, consecutive attendance. Such a requirement would be absurd and would go far towards neutralizing the results sought to be accomplished. A hundred per cent, consecutive school attendance is rather unusual, especially in rural districts, and a law which assumes to compensate a parent or guardian for transporting children to school conditioned, however, upon a hundred per cent, continuous attendance, would savor of irony rather than beneficence. All that the statute requires is that the children shall attend school for five months during the time of transportation. The transportation began in September, ended in April, and each of the five children attended school for a period of more than 100 days during such time. This satisfies the requirement of the statute in this respect.

It is next contended that the respondent is not entitled to the compensation because ■ one of the parents did not *258drive the horse. This contention we regard as utterly inconsistent with the purposes of the act. While the act provides that the “parent or. guardian of any such child may transport him to and from school,” we do not think this requires the physical presence of the parent in the conveyance. If the parent furnishes a conveyance and one of the children is of sufficient age to take charge of it and safely transport the other children, the spirit of the statute is complied with.

It is next contended that respondent is not entitled to compensation because he has not complied with the provisions of sec. 40.73, which requires children so situated to attend school six months during the year and makes it the duty of the parents to see that they so attend. It is contended that the respondent cannot claim the advantage of one school law while violating another. This does not follow. Whether or not the respondent.is entitled to- compensation fo'r transporting his children is to be determined solely by a reference to the provisions of sec. 40.16. That makes compensation conditional upon the children attending school five months only. Clearly this contention cannot be sustained.

It is next contended that.the transportation furnished was neither safe, comfortable, nor convenient, as required by the statute. This question was submitted to the jury and answered in the affirmative. Safe, comfortable, and convenient transportation are relative terms, depending upon many considerations. Different times, cycles, and communities, even families, have their peculiar standards of comfortable and convenient conveyances. Fie who is inured to the luxurious comforts of a richly upholstered limousine, or even he who pretends satisfaction with the redoubtable Ford, might disdain the comforts and convenience afforded by the conveyance furnished by the respondent to his children, although its service would have been welcomed by our fathers, who regarded the ox team and the lumber wagon *259as a satisfactory means of conveyance. At any rate, in view of the finding of the jury, we are not disposed to hold that the conveyance afforded by the respondent to the children, measured by the standards of that spafsely settled community, does not comply with the requirements of the statute.

We can discover no theory which would justify a reversal of this judgrnent.

*By the Cotirt.*— Judgment affirmed.