Judd v. Board of Education of Union Free School District No. 2

This action is brought by citizens of the United States and of the State of New York, each a resident and a taxpayer within the geographical limits of Union Free School District No. 2, of the Town of Hemp-stead, Nassau county, and owning property of the value of an amount in excess of one thousand dollars,to restrain the Board of Education of that school district from furnishing transportation with public funds for pupils to and from any private or parochial school located within or without such district, to compel the cancellation and removal of the assessment, levy and lien on their property for moneys appropriated for that purpose, and for other relief.

The defendant school district is a municipal corporation (General Corporation Law [Cons. Laws, ch. 23], § 3; Laws of 1892, ch. 687) and the defendant Board of Education is a body corporate (Education Law [Cons. Laws, ch. 16], § 300). An action may be brought by a taxpayer to restrain illegal official acts, to prevent waste and compel restoration of the taxpayer’s property by illegal action of the board (General Municipal Law [Cons. Laws, ch. 24], § 51; Lewis v. Board of Education, 258 N. Y. 117 ).

Pursuant to provisions of the Education Law (§§ 134, 206, 310 and 1020), the defendant had for some time prior to the commencement of the action provided free transportation to and from the public schools in the district for physically handicapped pupils of such schools and for those pupils who resided so remote therefrom that they were practically deprived of school advantages without such transportation. No such transportation was provided by the defendant for pupils resident therein who attended private or denominational schools.

In 1936, the Legislature amended section 206 of the Education Law (Laws of 1936, ch. 541, in effect September 1, 1936) so that the material part, with changes and additions in italics, reads as follows:

“ 18. Whenever any district shall have contracted with the school authorities of any city, or other school

district for the education therein of the pupils residing in such school district, or whenever in any school district children of school age shall reside so remote from the schoolhouse therein or the school they legally attend that they are practically deprived of school advantages during any portion of the school year, the inhabitants thereof entitled to vote are authorized to provide, by tax or otherwise, for the conveyance of any or all pupils residing therein (a) to the schools of such city, or district with which such contract shall have been made, or (5) tó the school maintained in said district and to schools, other than public, situate within the district or an adjacent district or city. Whenever conveyance of pupils shall be so provided for by vote of the inhabitants, the school district and the school trustees shall provide, if need be, one or more routes so that all children of school age in said district shall equally be afforded transportation facilities.

“ And the trustees [thereof] of the district may contract with any person, corporation or school district for such conveyance when so authorized in accordance with such rules and regulations as they may establish, consistent with rules and regulations of the commissioner of education, and for the purpose of defraying any expense incurred in carrying out the provisions of this subdivision, they may if necessary use any portion of the public money apportioned to such district. * * * ”

At a special district meeting of the voters of the public school district held on January 7, 1937, a proposition to appropriate moneys to provide transportation for pupils who attended a certain parochial school was defeated. The school was located outside of School District No. 2, was wholly under the control andjiirection of a religious denomination, and denominational tenets and doctrines were therein taught. Upon appeal to the Commissioner of Education, it was held that, under the statute as it stood in its amended form, if free transportation should be provided for pupils who attended the free common

The provisions of article IX of our Constitution (adopted in 1894) are the ones under consideration here.

Section 1 makes it mandatory for the Legislature to “ provide for the maintenance and support of a system of free common schools, wherein all the children of this State may be educated.” Under this provision, the schools provided must be sufficiently numerous so that all the children of the State may receive their education, whatever may be their race, creed, color, or condition. Private, denominational and sectarian schools, and schools or institutions of learning in which denominational tenets or doctrines are taught or those wholly or in part under the

Section 2 of article IX of the present Constitution' continues the University of the State of New York, incorporated under the name of “ The Regents of the University of the State of New York ” in 1784 (Laws of 1784, ch. 51). The act of 1784 was amended in minor particulars in chapter 15 of the Laws of 1785. Those acts were repealed by chapter 82 of the Laws of 1787. By that act, however, the Regents were reincorporated, their powers continued and enlarged, and provision was made that the members of the board should be appointed by the Legislature and should hold office during its pleasure. Thus common school education within the State came exclusively under public control and has since so remained.

Section 4 of article IX of the Constitution provides that “ Neither the State nor any subdivision thereof, shall use its property or credit or any public money, or

Since our organization as a State we have clearly and unequivocally indicated that there must be a complete severance between denominational or sectarian schools on the one hand and the public common schools on the other. As early as 1805 (Laws of 1805, ch. 108) the Legislature provided specifically that funds for the establishment of free schools for the education of poor children in New York city could be so used only where those children did not belong to or were not provided for by any religious society. Section 14 of the act of 1842 (ch. 150) specifically barred schools which taught religious or sectarian doctrines from receiving any public money in aid or support thereof. To further clarify the matter, the Legislature provided in section 12 of chapter 320 of the Laws of 1844 that “ no school shall be entitled to a portion of the school moneys in which. the religious sectarian doctrine or tenet of any particular Christian, or other religious sect shall be taught, inculcated or practised, or in which any book or books containing compositions favorable or prejudicial to the particular doctrine or tenets of any Christian sect, or which shall teach the doctrine or tenets of any other religious sect, or which shall refuse or permit the visits and examinations provided for in this act.” In 1853, citizens of New York State who were members of a certain religious denomination petitioned the Legislature to authorize the estab

While the provisions of article IX of the Constitution formally establish the public policy of the State, it is seen, therefore, that they merely crystallize into the fundamental law in mandatory form earlier decisions made by the people and recognized by the Legislature since the organization of the State and the adoption of the first Constitution. While a close compact had existed between the Church and State in other governments, the Federal government and each State government from their respective beginnings have followed the new concept whereby the State deprived itself of all control over religion and has refused sectaries any participation in or jurisdiction or control over the civil prerogatives of the State. Amd so in all civil affairs there has been a complete separation of Church and State jealously guarded and unflinchingly maintained. In conformity

The argument is advanced that furnishing transportation to the pupils of private or parochial schools is not in aid or support of the schools within the spirit or meaning of our organic law but, rather, is in aid of their pupils. That argument is utterly without substance. It not only ignores the spirit, purpose and intent of the constitutional provisions but, as well, their exact wording. The object of construction as applied to a written constitution is to give effect to the intent of the people in adopting it and this intent is to be found in the instrument itself unless the words or expressions are ambiguous (Cooley’s Constitutional Limitations [8th ed.], vol. 1, pp. 124-126). There is nothing ambiguous here. The wording of the

We have found but two decisions upon the precise question involved in this case (State ex rel. Van Straten v. Milquet, 180 Wis. 109 , and State ex rel. Traub v. Brown, supra), in both of which it was held that the furnishing of transportation at public expense to private or parochial school children was prohibited by the provisions of their respective Constitutions which were similar to ours. To like effect was Report of the Minnesota Attorney-General, 1920, page 300.

A related question arises on the constitutionality of statutes authorizing the furnishing out of public funds of free textbooks to private schools. Such a statute was held unconstitutional in Smith v. Donahue (supra). It was there urged that the furnishing of the textbooks was in aid of the pupils rather than in aid of the schools, but the court unanimously reached a contrary result. It is said that Cochran v. Louisiana State Board of Education ( 281 U. S. 370 ) is controlling authority to the contrary. That is not the case, however. In Borden v. Louisiana State Board of Education ( 168 La. 1005 ) it was held that the furnishing of school books to all the children of the State regardless of where they attended school did not violate a constitutional provision of that State to the effect that no money should ever be taken from the public treasury, directly or indirectly, in aid of any church or religious association, or another constitutional provision to the effect that no public funds should be used for the support of any private or sectarian school, on the ground that the private or sectarian schools were not the beneficiaries of the appropriations made for that purpose but rather the school children and the State alone. Three of the seven judges of the court dissented from that reasoning. That decision was immediately followed in the Cochran case ( 168 La. 1030 ), which latter went to the Supreme Court. The question of the con

The courts of this country have been unanimous in prohibiting a use of public funds to pay, directly or

Some reliance is also placed on the decision in Sargent v. Board of Education ( 177 N. Y. 317 ). It was a taxpayer’s action brought to restrain the defendant from providing out of public funds for the secular education of inmates of an incorporated orphan asylum maintained and controlled by a religious corporation, on the ground that chapter 261 of the Laws of 1850 under which the expenditures were authorized was repealed by article IX, section 4, of the Constitution and that such expenditures were unauthorized and unconstitutional. It was held as a basis for decision for the defendant that the particular asylum was neither a school nor an institution of learning and that “ the system of statutory law for the maintenance of charities administered by private corporations did not fall when the Constitution went into effect ” (p. 323).

It is claimed that the statute may be sustained as a valid exercise by the Legislature of the police power of the State. This argument overlooks the consideration than even the police power must be exercised in harmony with the restrictions imposed in the fundamental law (Colon v. Lisk, 153 N. Y. 188 ; People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N. Y. 126 , 131; Ives v. South Buffalo Ry. Co., 201 N. Y. 271 , 300; Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398 ).

Some reliance has been placed upon the decision in People v. Ewer ( 141 N. Y. 129 ), which, it is asserted, sustains the broadest kind of regulation over children.

No authority has been called to our attention nor has one been found in any jurisdiction to the effect that a statute purporting to be enacted in the exercise of the police power of the State may be held valid if repugnant to any constitutional provision or restriction. “ A written constitution,” said Judge Werner in Wright v. Hart ( 182 N. Y. 330 ), “ is the fundamental expression of the sovereign will. Under our form of government that sovereign will resides in the people. A written constitution is not only the direct and basic expression of the sovereign will, but is the absolute rule of action and decision for all departments and offices of government in respect to all matters covered by it and must control as it is written until it shall be changed by the authority that established it” (p. 333). When that sovereign will has been clearly expressed, it is the duty of the courts rigidly to enforce it. It is not the province of the courts to circumvent it because of private notions of justice or because of personal inclinations (People ex rel. Roman Catholic Orphan Asylum Soc. v. Board of Education, 13 Barb. 400 , 411; Cooley’s Constitutional Limitations [8th ed.], vol. 1, pp. 124-126, and cases cited). “Eternal vigilance,” said Judge Pound in People ex rel. Lewis v. Graves ( 245 N. Y. 195 ,199), “ is the price of constitutional

(The statute, in so far as it authorizes the use of public funds for transportation of pupils to and from any school or institution of learning wholly or in part under the control or direction of any religious denomination or in which any denominational tenet or doctrine is taught, is repugnant to our fundamental law, unconstitutional^/ and void.J Attention has been called to the fact conceded by the pleadings that the defendant has appropriated $3,350 of public funds for the purpose of transporting pupils to a private school at which denominational tenets and doctrines are taught, which sum has been added to the budget of defendant, a tax has been levied upon the taxable property of the school district for the purpose of meeting such appropriation, and a lien exists against the property of the plaintiffs. Plaintiffs seek judgment enjoining and restraining the Board, its members, trustees, agents, officers and employees, from furnishing trans portation for pupils attending the school in question and that such assessment, levy and hen on the property of plaintiffs be vacated, canceled and removed as a cloud

The judgments appealed from should be reversed and the case remitted to the Special Term to proceed in accordance with this opinion, without costs.

(dissenting). In this taxpayer’s action, instituted under section 51 of the General Municipal Law, to restrain the Board of Education from furnishing transportation to pupils of private schools, the plaintiffs attack the constitutionality of subdivision 18 of section 206 of the Education Law, under the authority of which the transportation was furnished. In so far as material here that section provides: “ * * * whenever in any school district children of school age shall reside so remote from the schoolhouse therein or the school they legally attend that they are practically deprived of school advantages during any portion of the school year, the inhabitants thereof entitled to vote are authorized to provide, by tax or otherwise, for the conveyance of any or all pupils residing therein (a) to the schools of such city, or district with which such contract shall have been made, or (b) to the school maintained in said district and to schools, other' than public, situate within the district or an adjacent district or city. Whenever conveyance of pupils shall be so provided for by vote of the inhabitants, the school district and the school trustees shall provide, if need be, one or more routes so that all children of school age in said district shall equally be afforded transportation facilities.”

The sole ground of attack on the constitutional validity of this statute is that it infringes article IX, section 4, of the State Constitution, which reads: “ Neither the State nor any subdivision thereof, shall use its property

It will be observed that the constitutional provision referred to not only recognizes the right of such schools to exist, but by implication, authorizes the expenditure of public money “ for examination or inspection ” of such schools. Nevertheless, our fundamental law provides that neither the State nor any political subdivision shall permit its money, credit or property to be used “ in aid or maintenance ” of any such religious schools. The Legislature may not disobey the mandate of the Constitution, and should they do so the courts may not hesitate to declare the infringement of the constitutional mandate. (The question presented here is whether the Legislature has authorized a political subdivision of the State to use its money “in aid or maintenance ” of any school of the class named in the Constitution. X

Article 23 of the Education Law deals with compulsory education. Under section 620: “ A minor required to attend upon instruction by the provisions of this article may attend at a public school or elsewhere. The requirements of this section shall apply to such a minor, irrespective of the place of instruction.” The section prescribes the quality and language of instruction, courses of study, and length of school sessions. Section 621 prescribes the age limit within which minors must attend upon full time instruction, and section 622 sets forth the conditions under which he may attend part-time school. Section 625 provides for the amount and character of the required attendance: “ If a minor included by the provisions of this article attends upon instruction elsewhere

The Legislature recognizes the right of parents to send their children for instruction to schools other than public schools. It could not do otherwise consistently with the Fourteenth Amendment to the United States Constitution. (Pierce v. Society of Sisters, 268 U. S. 510 .) Nevertheless, it has commanded all minors within certain ages to attend school and requires those in parental relation to cause the children to attend upon instruction as provided. When a child is enrolled in a school, public or otherwise, regular attendance is compulsory .J A child may be sent to a public school or to a private school, but those in charge of the child are not free to permit the child to grow up without any instruction whatever. '/^Having made attendance upon instruction compulsory and having approved of attendance at certain schools other than public schools, the Legislature determined that the inhabitants of the district should have the power, under certain conditions, to provide for the transportation of the pupils to and from the schoolhouse in the district or the school which they legally attend. The object of such legislation is apparently to insure the attendance of the children at their respective schools for the requisite period of instruction and, perhaps, to safeguard the health of the children. The statute is not designed to aid or maintain the institutions themselves. Recognizing the right of the children to be sent to such schools, and enjoining upon them the duty of regular attendance, the Legislature gave the authorities power, in a proper case, to assist the children in getting to their school^ The

f The statute in question does not have the effect of giving public money, property or credit in aid or maintenance of religious schools. The aid is given to the pupils who are legally attending such schools, to assist them to spend the required time in attendance upon / instruction^ In most cases those in parental relation choose the school at the beginning of the school year, and the arrangements for transportation cannot be initiated until the attendance figures show whether and to what extent such facilities may be needed. There is no benefit to the schools except, perhaps, as one may conceive an accidental benefit in the sense that some parents might place their children in religious schools when they anticipate transportation provision, though they might hesitate to do so if the children were compelled to make their own way. The constitutional provision is not designed to discourage or thwart the school where religious instruction is imparted. “ Denominational religion is merely put in its proper place outside of public aid or support.” (People ex rel. Lewis v. Graves, 245 N. Y. 195 , 198.)

The judgment should be affirmed.

Lehman, Hubbs and Pinch, JJ., concur with Rippey, J.; Crane, Ch. J., dissents in opinion, in which O’Brien and Loughran, JJ., concur.

Judgment accordingly. (See 278 N. Y. 712 .)