Board of Education v. Wheat , 174 Md. 314 ( 1938 )

The infant appellee, a pupil at a Roman Catholic parochial school in Baltimore County, the Immaculate School, has been granted the writ of mandamus to compel the Board of Education of the county to carry him to and fro between his home and the school, in accordance with a public local law of the county (Acts of 1937, chapter 185), ordering transportation of such a child in a bus provided for public school children. The board has appealed, and on its appeal questions the validity of the provision on several grounds, but principally that, as the school he attends is a private school, and he is attending it, rather than the public school, for the religious training of his parents' choice, the promotion of his convenience in doing so is in effect a diversion of public school funds to a private purpose, and a contribution to the maintenance of a place of worship in contravention of the Declaration of Rights of the State.

The statutory provision (Acts 1937, ch. 185, p. 321, sec. 146A), is that all children who attend schools in the county which do not receive state aid, and who reside on or along or near the public highways on which there is now or hereafter operated a public school bus provided by the Board of Education for transporting children to and from the public schools, shall be entitled to transportation on the same buses from a point on the highway nearest or most accessible to the home of the child to a point nearest or most accessible to its school, without changing the route of the bus, upon the same terms as those provided for public school children. A second section of the statute (Acts 1937, ch. 185, p. 322, sec. 146B) provides for the raising of money necessary, not exceeding $15,000, for the additional expense, and authorizes the establishment of additional bus routes. Funds for the purpose have been appropriated by the county commissioners, but the board, questioning the validity of the enactment, has declined to administer them.

To the petition for the writ the board answered setting up its contentions, the petitioner demurred to the answer, and the demurrer was sustained; and no further proceedings being taken, the writ was ordered to issue.

There is no dispute of fact. It is conceded that this child, who lives about four hundred feet from a road along which a public school bus passes, and whose school is about three miles on the road toward Towson where the public school is situated, is in all respects within those entitled to transportation under the questioned statute, if it is valid. The school does not receive state aid. It is conducted in connection with a Roman Catholic church, the Immaculate Church, its pupils are taught and disciplined by sisters of that church, and during school sessions they are given instruction in the Roman Catholic faith, and at times attend for worship in the church.

Compliance of the title of the act with the constitutional requirement that the subject should be described in it is questioned. Constitution, art. 3, sec. 29. It is, in brief, "An Act to add two new sections to Offutt's Revised Code of the Public Local Laws of Baltimore County * * * to follow Section 146 * * * and to be known as Section 146A and Section 146B, directing the Board of Education of Baltimore County to provide certain transportation for children attending certain schools in Baltimore County, and directing the County Commissioners * * * to appropriate certain funds." The appellee refers to the rule that a description merely by designation of article and sections added to the Code may be sufficient. Dean v. Slacum, 149 Md. 578,132 A. 73. But this title does not leave the description at that; it undertakes to give more information and the objection is that what is given is misleading. Buck Glass Co. v. Gordy,170 Md. 685, 688, 185 A. 886. It is objected that "certain schools" in a statute, especially one appropriating certain public funds, would lead to an assumption that public schools were dealt with in the body of the enactment. The facts that provision for public schools only is the concern of the Legislature, and that in common understanding "schools" in any governmental provision would regularly be public schools, are urged as having an effect to conceal, under this title, a provision for conveying children to and from private and parochial schools. State v. King,124 Md. 491, 498, 92 A. 1041; Culp v. Chestertown, 154 Md. 620, 625, 141 A. 410; Buck Glass Co. v. Gordy, supra.

The question is one of degree of likelihood of leading to a misconception of the enactment, and the court has come to the conclusion that in this instance the likelihood is not so great as to render the title insufficient. Culp v. Commissioners,supra. For testing conformity of a title to this constitutional requirement, there is enjoined upon the courts a disposition to uphold rather than to defeat the enactment. State v. Norris,70 Md. 91, 96, 16 A. 445; Barron v. Smith, 108 Md. 317, 327,70 A. 225.

A second ground of objection is that of a violation of the prohibition in article 3, section 33, of the Constitution against passage of a special law for any case for which provision has been made by an existing general law. The present local act is in the argument considered to be a special one, excluded by the provisions in article 77 of the Code of Public General Laws concerning expenditures by the board for school purposes, and the transportation of pupils of schools. Section 56 of article 77 requires the Board of Education of each county, subject to the rules and regulations of the State Board, with the advice of the County Superintendent, to prepare a budget, "showing the unexpended balance on hand or in [its] treasury for each specific purpose allowed and levied by the County Commissioners at the preceding levy the amount of money needed for permanent improvements and repairs, and for current repairs, furniture for old buildings, maintenance and support of schools during the succeeding school year, also the estimated total amount that will be received from the State, which shall be used for paying teachers' salaries and purchasing text-books, materials of instruction, and school supplies; and finally the amount that will be needed to be raised by local taxation." Section 50 was passed as an incident to an authority to consolidate schools previously existing, adding to that authority a provision that the county board of education "shall pay, when necessary, for the transportation of pupils to and from such consolidated schools."

The court does not see that these sections must exclude subsequent local legislation, otherwise valid, for conveyance of private school children. Another subject of expense might properly be added to those enumerated, and might be added for the one county if the General Assembly should find reason for it. The constitutional prohibition now considered is not against local laws but against special laws. County Commissioners ofDorchester County v. Meekins, 50 Md. 28, 39. The requirement would be a special law only if it should be regarded as a provision for selected persons or institutions. State v.Baltimore County Commissioners, 29 Md. 516, 519; Dasch v.Jackson, 170 Md. 251, 261, 183 A. 534. And if it is a special law by that definition, its subject matter does not seem to the court to have been provided for in the existing general law, section 56, with the consequence that the special law is prohibited. Nor is an exclusive covering of the subject found in section 50. Being part of a provision for consolidating the schools, it is itself one of limited scope and purpose, that is, to obviate the disadvantage of distance of the centralized schools from many pupils. It does not attempt to cover the whole subject of conveyance of school children, so as to exclude extension of the use of buses by a subsequent local law.

Does it, then, as a provision for private school children, violate the prohibition against the use of funds for private purposes in articles 15 and 23 of the Declaration of Rights, and violate that of the Fourteenth Amendment to the United States Constitution by taking money of the taxpayers for the use of private institutions? Baltimore Eastern Shore R. Co. v.Spring, 80 Md. 510, 31 A. 208; Citizens' Sav. Loan Assn. v.Topeka, 20 Wall. 655, 22 L. Ed. 455; Jones v. City of Portland,245 U.S. 217, 38 S. Ct. 112, 62 L. Ed. 252; Green v. Frazier, 253 U.S. 233, 40 S. Ct. 499, 64 L. Ed. 878. The actual provision is more narrowly limited than the question might suggest. It is, in substance, that the buses provided to transport public school children shall also accommodate children of the private schools entering and leaving along the road. No buses are to be provided for private school children especially, although an increase in the number of all children to be carried might, of course, necessitate an increase in the number and expense of conveyances. All the conveyances referred to, even in the authorization of new routes in the second section, are those described in the first section, the public school buses. And the accommodation of private school children is an incidental use of provision made for an unquestioned public purpose.

It is not a use of surplus space that is provided for, within the principle applied in permitting private use of schools and other public buildings. Gottlieb-Knabe Co. v. Macklin,109 Md. 429, 71 A. 949; Cost v. Shinault, 113 Ark. 19, 166 S.W. 740; 63A.L.R. 616; State v. Cleveland, 125 Ohio St. 230,181 N.E. 24. It is a use without regard to extra space, and money is to be provided by the taxpayers for an expected expense from it. And if that use is a private one, then there are limits to the application of public money and facilities to it. Gottlieb-KnabeCo. v. Macklin, supra; Citizens' Sav. Loan Assn. v. Topeka, 20 Wall. 655, 22 L. Ed. 455; Jones v. City of Portland,245 U.S. 217, 38 S. Ct. 112, 62 L. Ed. 252; Green v. Frazier,253 U.S. 233, 40 S. Ct. 499, 64 L. Ed. 878.

Whether it is private within that rule appears to be, finally, a question whether it is in furtherance of a public function in seeing that all children attend some school, and in doing so have protection from traffic hazards. School attendance is compulsory, and attendance at private or parochial schools is a compliance with the law. Code, art. 77, secs. 220 and 221, 14, 21 and 228. For the board it is argued that the act cannot be classed as a measure of protection from traffic hazards because it affects only a small portion of private school children equally subject to those hazards. As the buses are not to convey to any public schools other than the consolidated ones, there is no protection given to children attending others. Neither is there any given to children attending schools receiving state aid, those attending one school supported by the State, those who do not reside along routes of the public school buses, or those whose schools are within a mile of their homes. And to the reply that these are the limitations on the buses and their routes, the public school buses being availed of to convey all children within the class along those routes, it is argued further that the public school buses themselves are not supplied for protections against traffic hazards, but only, as stated, to overcome the disadvantage of increase of distance for many pupils as a consequence of the consolidation of schools. The limit on the originating object would not, however, prevent public utilization of any further advantages that might be developed from use of the buses. In other words, if the buses to and from the consolidated schools have been found valuable in later days as protection against traffic hazards, they may be dealt with as such protections. And the great increase in traffic dangers to children since the enactment of section 50 of article 77, in 1916, might well be regarded as having given the buses the newer purpose.

With that purpose possible, then, is the act to be regarded as a provision for supplying the public school facilities to private schools? The question includes provision to parochial schools, one kind of private schools. Courts elsewhere, which in cases cited to us have dealt with somewhat similar questions, have not agreed in their views. In Cochran v. Louisiana State Board ofEducation, 281 U.S. 370, 50 S. Ct. 335, 74 L. Ed. 913, the Supreme Court of the United States decided that an appropriation of taxpayers' money to provide textbooks to children of private schools did not violate the Fourteenth Amendment, mainly because the books were, by the terms of the authorizing statute, to be supplied directly to the children. In the state court from which the appeal was taken three of the seven judges sitting dissented from that view. Borden v. Louisiana State Board, 168 La. 1005,123 So. 655. Compare Synod of South Dakota v. State, 2 S.D. 366, 50 N.W. 632; State v. Hallock, 16 Nev. 373. And it has gone without question since. Possible difficulties in distinguishing supply of other school facilities, and the ease of evasion of the constitutional prohibition by the mere form of appropriating money to children rather than to private institutions, have been remarked. See A.A. Bruce, in 25 Illinois Law Rev. 547. There have been decisions in conflict, especially in cases of facilities supplied to religious institutions. State ex rel. Traub v. Brown, 6 W.W. Harr. 181,36 Del. 181, 172 A. 835; State v. Milquet, 180 Wis. 109, 192 N.W. 392; Smith v. Donahue, 202 A.D. 656, 195 N.Y.S. 715;Otken v. Lamkin, 56 Miss. 758. In two cases in courts of inferior jurisdiction (Lewis v. Board of Education, 275 N.Y. 480,11 N.E.2d 307, appeal dismissed Id., 275 N.Y. 544,11 N.E.2d 743, and Judd v. Board of Education, 164 Misc. 889, 300 N.Y.S. 1037) transportation of private school children at public expense has been found valid.

It is, however, not found necessary to consider in the present case whether text books or any facilities other than that of transportation of the children may be supplied, for they may be differentiated. Starting with the interest which the State is acknowledged to have in seeing that all children of school age acquire an education by attending some school, and the fact that they are complying with the law in going to such a school as the parochial school involved in this case, their accommodation in the buses appears to the court to be within the proper limits of enforcement of the duty imposed. Compliance having been made dangerous in a much greater degree, removal of the danger to any extent would seem to be within the same public function. Even though the statute ordering it may be open to another interpretation, if the transportation with this object is a constitutional action, the statute must be construed as having the object, because the court is required to admit the constitutionality of an act of assembly if it can be brought within the exercise of any constitutional power. Keiningham v. Blake, 135 Md. 320, 322, 109 A. 65; Painter v. Mattfeldt, 119 Md. 466, 472,87 A. 413. The danger of perversion to private purposes may be admitted, but the Legislature is primarily entrusted with the care of that, and the courts have no duty in relation to it unless and until a perversion should be obvious. The fact that the private schools, including parochial schools, receive a benefit from it could not prevent the Legislature's performing the public function.

This conclusion that the act must be regarded as one within the function of enforcing attendance at school, renders it unnecessary to consider separately the objection that a religious institution is aided. Art. 36, Declaration of Rights. The institution must be considered as aided only incidentally, the aid only a by-product of proper legislative action.

One further objection is that the accommodation of private school children violates the requirement of section 3 of article 8 of the State Constitution, that, "The School Fund of the State shall be kept inviolate, and appropriated only to the purposes of education." Apart from any other reason, this interprets "purposes of education" too narrowly. It is not denied that transportation comes within the purposes for which the public money may be expended when public school children are carried, and that must be equally true when private school children are carried, if carrying them is found to be within the public functions.

Order affirmed, with costs.