Matthews v. Quinton Ex Rel. Quinton ( 1961 )

AREND, Justice.

This is a class action by a school child, Judy Kay Quinton, who, with her parents, sought to enjoin the defendant school authorities from refusing to transport her on a public school bus to the nonpublic school which she was attending. From a summary judgment in favor of Judy and all children of the plaintiff class similarly situated, the defendants have appealed.¹

With some modifications we shall adopt the statement of facts from a written opinion rendered by the lower court at the time of filing the summary judgment.

The amended complaint in this case was filed on February 21, 1959. At that time the plaintiff Judy was eleven years of age and attending the fourth grade in Immaculate Conception Elementary School, a nonpublic school in Fairbanks and within the Fairbanks School District which is an incorporated independent school district. Under the laws of Alaska all children between seven and sixteen years of age, or until they have completed the eighth grade, are required to attend school. Attendance may be at either a public or private school and it is not compulsory if the child resides more than two miles from a school, unless transportation is furnished.² The law also empowers the defendant Alaska Board of Education, among other things, to require school districts to enter into contracts with the Board for the operation, or sub-contracting of the operation, of transportation systems for pupils to and from the schools within their respective service areas.³ Acting for the Board of Education, the Commissioner of Education entered into a contract with the Fairbanks School District for the transportation of pupils residing more than one and one-half miles from the school they were required to attend.

Judy resided more than one and one-half miles from Immaculate Conception School, but there was a public elementary school, with classes up through the sixth grade, less than one and one-half miles from her home. The Fairbanks School District operated a school bus which went by Judy’s home and transported children to the public junior and senior high schools in Fairbanks. As this bus went near by Immaculate Conception School, Judy used it for transportation to her school until January 28, 1959, when defendant Jack Gourley, transportation officer for the Fairbanks School District, issued a directive that resulted in this law suit. Under the directive, effective immediately, all public school buses were to discontinue picking up elementary school children living closer than one and one-half miles from a public school and were not to discharge passengers at nonpublic schools en route but were to do such discharging only upon arrival at a public elementary school.

As in the lower court, the controversy here turns upon the effect and constitutionality of an Alaska statute passed by the Territorial legislature in 1955 which relates to the free transportation of children attending nonpublic schools in Alaska. SLA 1955, Ch. 39 (§§ 37-11-4 to 37-6, ACLA Cum.Supp.1957). The statute in question is set out in the margin and will be referred to hereinafter as Chapter 39⁴ One reading the statute must bear in mind that, at the time of its enactment, Alaska was still a Territory and had for its constitution the Organic Act of Alaska.⁵ Section 9 of this Act prohibited the appropriation of public funds for nonpublic school purposes in the following language:

“ * * * nor shall any public money he appropriated by the Territory or any municipal corporation therein for the support or benefit of any sectarian, denominational or private school, or any school not under the exclusive control of the government; * * * and all laws passed, or attempted to be passed, by such legislature in said Territory inconsistent with the provisions of this section * * * shall be null and void.” ⁶

The trial court in its opinion seriously questioned the validity of Chapter 39 in the light of the provision of Section 9 of the Organic Act just quoted, but concluded that such provision yielded to the force and language of the Alaska state constitution subsequently ratified and adopted. We shall have more to say about the pertinent provisions of the constitution further along in this opinion.

The appellants take the position that Chapter 39 does not violate the provisions of the Organic Act if it is given the interpretation to which they claim it is entitled. They argue that Chapter 39, with respect to the transportation of nonpublic school children by public school buses, merely states and means that, if such children live more than a prescribed distance from a public school which they could attend, then they are entitled to ride the public school bus to the nonpublic school which they are actually attending, the other requirements of the statute as to “comparable distances” and “same routes” having been met.⁷ In other words, the appellants are asking us to construe the words “his school” in Section 1(a) of the statute to mean “a public school.” On this issue the lower court ruled that in order for Chapter 39 to make sense, the crucial distance is not the distance to the nearest public school or the distance to some other nonpublic school but the distance which the child must travel in order to reach the nonpublic school which he is attending. With that ruling we are in accord.

Having thus ruled on the construction to be given to Chapter 39, we need to determine next whether it was a valid enactment . under the restrictive provisions of Section 9 of the Organic Act. The question of whether statutes providing for the transportation of children to nonpublic schools at public expense are in contravention of a constitutional prohibition against the appropriation of public funds or public school funds for the support or benefit of sectarian or private (nonpublic) schools has been before the courts of the land on a number of occasions. One line of authority holds that such statutes are violative of the constitutional provision mentioned.⁸ The reasoning employed in support of this position is perhaps best stated in the New York case of Judd v. Board of Education⁹ wherein the court said:

“ * * * Free transportation of pupils induces attendance at the school. The purpose of the transportation is to promote the interests of the private school or religious or sectarian institution that controls and directs it. ‘It helps build up, strengthen and make successful the schools as organizations.’ State ex rel. Traub v. Brown * * Without pupils there could be no school. It is illogical to say that the furnishing of transportation is not an aid to the institution while the employment of teachers and furnishing of books, accommodations and other facilities are such an aid. * * * ”

Then there is another line of authority which holds that a statute such as Chapter 39 is for the benefit of the pupils of the school and that it does not contravene constitutional provisions prohibiting the use of public funds for the benefit of a nonpublic school.¹⁰ The rationale of the two courts which support this latter view is set forth by the District Court of Appeals for the Fourth District of California in Bowker v. Baker,¹¹ as follows:

“The general line of reasoning running through those cases which uphold the right of the school district to provide free transportation for [nonpublic] school children finds its starting point in the undoubted police power of the state to promote the public welfare by aiding in practical ways the education of the young. It is generally held that the direct benefit conferred is to the children with only an incidental and immaterial benefit to the private schools; that this indirect benefit is not an appropriation of public money for private purposes and does not violate any constitutional provision against giving State _ aid to denominational schools.”

Since the question raised here is one of first impression in Alaska, we have also read and carefully considered the decisions of the courts of Connecticut, Kentucky, Massachusetts and New Jersey, which, at first blush, might seem to follow the Maryland and California rule. We find, however, that those courts did not squarely face the issue before us here.

In Snyder v. Town of Newtown, 1960, 147 Conn. 374, 161 A.2d 770, appeal dismissed 81 S.Ct. 692, 5 L.Ed.2d 688, it was held that school funds could be used only for the support of public or common schools. It was also held that a Connecticut statute permitting municipalities to vote whether they should pay from their general funds for the transportation of children to nonpublic schools did not violate a constitutional provision, C.G.S.A.Const. art. 7, § 1, that “ * * * no person shall by law be compelled to join or support * * * any congregation, church or religious association.” ¹²

In Sherrard v. Jefferson County Board of Education,¹³ the Kentucky Court of Appeals had held that public school funds could not be used for the transportation of children attending private schools. Three years later, in Nichols v. Henry, 1945, 301 Ky. 434, 191 S.W.2d 930, 168 A.L.R. 1385, the same court, though reaffirming its decision in the Sherrard case, held that the individual counties could pay for such transportation out of their general funds, but not out of any funds or taxes raised or levied for educational purposes.

The Supreme Judicial Court of Massachusetts in Quinn v. School Committee of Plymouth, 1955, 332 Mass. 410, 125 N.E.2d 410 held that mandamus would lie to compel a town school committee to provide transportation for pupils attending private elementary schools to the same extent that the committee provided transportation for public elementary school pupils. The court avoided the constitutional question by holding that, since no personal or property rights of the committee were involved, that body could not question the constitutionality of the statute which provided for such transportation. I

The New Jersey Court of Errors and Appeals, in Everson v. Board of Education of Ewing Tp.,¹⁴ on the rule of presumption sustained the constitutionality of state legislation which authorized the local school districts to make rules and contracts for the transportation of children to and from school and also held valid the resolution under which the appellee, a township board of education, authorized reimbursement to parents of money expended by them for transportation of their children to Catholic parochial schools. Since it was not shown, one way or the other, that any of the funds involved came from [133 N.J.L. 350, 44 A.2d 336] “the fund for the support of free schools” the court presumed that the payment was made out of money constitutionally available for that purpose. It is obvious that the court would have decided otherwise if any showing had been made that the funds had been mingled as argued by the dissenting opinion.¹⁵ Be that as it may, New Jersey amended its constitution two years later to permit such transportation.¹⁶

The Everson case eventually reached the Supreme Court of the United States,¹⁷ which by an unpersuasive five to four decision upheld the New Jersey statute mentioned above. The majority of the Court accepted the finding of the New Jersey Court of Errors and Appeals as being “that neither the [New Jersey] statute nor the resolution [of the school board] passed pursuant to it was in conflict with the State constitution or the provisions of the Federal Constitution in issue.” ¹⁸ Actually, as we view it, the New Jersey court held that only general state funds and general funds of the school districts could be constitutionally used to pay the costs of transportation to nonpublic schools. But “the fund for the support of free schools” could not he so used. Historically such special school funds were set aside and used entirely for the support of the free schools. The early state constitutions were worded with the thought in mind that the only money available to the schools would come from that fund and would he limited to the support of public free schools. The income from such funds has been found inadequate to supply the money needed for schools in this modern age however, and so recourse is also had to the general funds.¹⁹ The New Jersey court concluded that the state constitution did not prohibit the use of “general funds” to pay for transportation to nonpublic schools. The Alaska Organic Act made no such distinction between “general funds” and “funds for the support of free schools.” Its proscription was against the appropriation of “any public money.” ²⁰

In the final analysis, the Supreme Court in the Everson case did nothing more than accept the state court’s interpretation of the New Jersey constitution and then hold that the use of the state’s general fund to pay for the transportation in question was not a violation of the First and Fourteenth Amendments of the federal constitution.²¹

Having carefully examined Chapter 39 and that provision of Section 9 of the Alaska Organic Act which proscribed the appropriation of public funds for the support or benefit of any sectarian, denominational or private school, and having weighed the decisions from other jurisdictions for and against the right of a state to provide for the free transportation of children to nonpublic schools, and being mindful of the due regard which should be had for a judicial determination of the United States Supreme Court on a related matter, we hold that Chapter 39 violated the plain provisions of the Organic Act above mentioned.

In its public schools Alaska has long provided for the secular education of all children, but it does not prevent any child from obtaining secular or both secular and sectarian education in nonpublic schools, provided only that these schools meet the secular standards prescribed.²² If those standards are met, the parent or guardian has a constitutional right to send the child to a nonpublic school.²³ The exercise of this right by the individual is not inconsistent with our determination that the legislature of the Territory of Alaska under the provisions of Section 9 of the Organic Act had no authority to pass a statute which required the use of public funds to pay for the transportation of children to a nonpublic school; because such use of the public funds, we hold, constitutes a benefit to the nonpublic school. Nor is such legislation a valid exercise of the police power, as we shall later point out.

At this point the appellees, Judy Quinton and her parents, interpose the argument that, even if Chapter 39 violated the provisions of the Organic Act here under consideration, no court ever passed upon the question of its constitutionality during Alaska’s territorial status. Hence, the statute was in full force and effect when ■the Alaska state constitution became operative on January 3, 1959,²⁴ and was ratified and confirmed by article XV, section 1 of the constitution which provides:

“All laws in force in the Territory of Alaska on the effective date of this constitution and consistent therewith shall continue in full force until they expire by their own limitation, are amended, or .repealed.” ²⁵

We cannot accept the argument as a sound one. The dictionary²⁶ gives the word “valid” as one of the definitions of the phrase “in force.” Professor Wil-loughby in his work on constitutional law stated some thirty years ago that the validity of a statute is to be tested by the constitutional powers of a legislature at the time of its enactment and, if so tested, it is beyond the legislative power, it will not be rendered valid by a constitutional amendment, except by subsequent re-enactment.²⁷

We consider the finding of the Washington State supreme court on a similar question in State v. Ellis, 1900, 22 Wash. 129, 60 P. 136, to be applicable here. In 1854 the legislature of the Territory of Washington passed a law providing that a defendant in a criminal case and the prosecuting attorney, with the assent of the court, might submit the trial to the court except in capital cases. Ellis was charged with robbery and stipulated that he should be tried by eleven jurors. The jury found him guilty and Ellis moved to set aside the verdict as void and for a new trial. The lower court granted the motion for the reason that Ellis could not waive the constitutional right to a trial by twelve jurors. The state appealed from the motion, contending that inasmuch as the law was upon the statute books at the time of the adoption of the Washington state constitution (1889), and section 2 of article 27 of the constitution provided that the laws which were then in force in the Territory of Washington and not repugnant to the constitution should remain in full force until they expired by their own limitation or were repealed by the legislature, this law became incorporated into the laws of the state and had to be considered as valid existing constitutional law until declared to be unconstitutional by competent judicial authority. To this claim of the state, the appellate court replied:

“But we hardly think this .rule of construction is sound. Section 2 of article 27 could not be construed as re-enacting a statute, as all the force it had was to continue in force all valid laws which were then in existence.” ²⁸

We recognize the legal principle that a constitutional provision, which from the language used shows expressly or by necessary implication that it was intended to operate retrospectively to validate antecedent unconstitutional legislation, renders valid all such legislation to which the constitutional provision relates, without re-enactment by the legislature, unless such attempted validation would impair the obligations of a contract or divest vested rights.²⁹ The cases we have examined, bearing on the subj ect, require that the validating constitutional provision must make some reference, however slight or inferential, to the statute intended to be validated.³⁰ Tested by the principles just stated, section 1 of article XV of the Alaska constitution, in our opinion, does not show by the language used, either directly or by necessary implication, that it was intended to operate retrospectively so as to validate Chapter 39. It follows, therefore, that Chapter 39 remains as void today as it was on the day of its enactment.

We next address ourselves to the question of whether under section 1 of article VII and section .6 of article IX of the state constitution, Chapter 39 may now be validated through its re-enactment by the state legislature. We believe not.

Section 6 of article IX of our constitution specifically declares that

“No tax shall be levied, or appropriation of public money made, or public property transferred, nor shall the public credit be used, except for a public purpose.”

This is a general measure and expresses a very definite policy. It needs to be considered, however, in relation to section 1 of article VII which provides that

“The legislature shall by general law establish and maintain a system of public schools open to all children of the State and may provide for other public educational institutions. Schools * * * so established shall be free from sectarian control. No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.”

Appellees concede that there is conflict in the judicial philosophies .relative to statutes of such kind as Chapter 39 but maintain that the view favoring their constitutionality is the more persuasive, reflects the current judicial trend and is called for by the decision of the United States Supreme Court in the Everson case. We disagree except as to the statement that there is a conflict in the judicial philosophies.

The key words in section 6 of article IX and section 1 of article VII of the Alaska constitution, insofar as this case is concerned, are “for a public purpose” and “direct benefit.” Appellees contend that Chapter 39 serves a very valuable public purpose by encouraging compliance with the state’s compulsory education law and contributes to the health and welfare by eliminating the hazards of highway and climatic conditions in Alaska for nonpublic school children. It is their further contention that Chapter 39 is designed to aid the parents and their children. In this connection they cite the cases from other jurisdictions which hold that the transportation of school children to nonpublic schools is for the benefit of the children and confers no direct benefit upon the schools concerned.

It is true that the legislature in enacting Chapter 39 recognized the following facts as stated in the statute itself:

“(a) Attendance at schools for all children between the ages of seven and sixteen years is compulsory, except in those cases where a child, residing more than two miles from his school, is not furnished with transportation.

“(b) The health of all children is endangered by requiring them to walk long distances to school in inclement weather; and their safety, also, is endangered in requiring them to so walk to their schools along highways that have no sidewalks.

“Therefore, in order to protect the health and safety of all school children in Alaska, and to achieve the objectives of the compulsory education laws of Alaska, this statute is enacted.”

But this intent of the legislature to protect the health and safety of all school children in Alaska was not carried out in the statute enacted. The only nonpublic school children entitled to free transportation under Chapter 39 are those who must travel comparable distances and the same routes over which the children attending public schools are transported. In other words, nonpublic school children who are fortunate enough to be living along a public school bus route are given transportation. All other nonpublic school children living within the two mile compulsory attendance limit and more than one and one-half miles from their school are left to fend for themselves.

It cannot be truthfully said that the severe winter weather and the highways without sidewalks around Fairbanks are less hazardous to the health, welfare and safety of the nonpublic school child who does not live along a school bus route and therefore has to walk to school than to the health, welfare and safety of his class-' mate who rides because his home is along the route. Nor can anyone say that the public school first grader, who lives 1.49 miles from his school and has to walk, will feel the cold less than, and not have to face the same traffic risks as, an older sixth grader of the nonpublic school who gets to ride on the public school bus because he lives along the bus route and at a distance of 1.51 miles from the nonpublic school of his choice.

Neither the inclement weather nor highway traffic hazards were used as a justification for the first law passed in Alaska to provide transportation for school children. We .refer to section 83 of chapter 97 of the Laws of Alaska, 1929, which simply stated that school boards were authorized to contract for the transportation of pupils “who reside a distance of more than two (2) miles from the school they are required to attend, or where such transportation is necessary to. afford children an opportunity to attend school.” Distance from school seems to have been the motivating force for legislation at that time.

By what has just been said we do not mean to imply that the legislature has no authority to provide by legislation for the health and safety of all school children in Alaska. Nor do we mean to decide that Chapter 39 is discriminatory in its nature. All we are saying at this time is that Chapter 39 does not effectuate the intent expressed therein by the legislature.

Turning now to the argument that the transportation of school children to nonpublic schools on public school buses is of direct benefit only to the child,³¹ we say again that, in our opinion, the furnishing of such transportation at public expense constitutes a direct benefit to the school. This was the view expressed by the courts of Delaware, New York, Oklahoma, Washington, and Kentucky,³² and it was also the view favored by the dissenting jurists in Maryland,³³ Louisiana (in a textbook case),³⁴ and New Jersey,³⁵ where the state courts have adopted the child benefit theory, and by the four dissenting Justices of the United States Supreme Court in Everson v. Board of Education.³⁶ Said Mr. Justice Rutledge in the Everson case:

“Finally, transportation, where it is needed, is as essential to education as any other element. Its cost is as much a part of the total expense, except at times in amount, as the cost of textbooks, of school lunches, of athletic equipment, of writing and other materials; indeed of all other items composing the total burden. Now as always the core of the educational process is the teacher-pupil relationship. Without this the richest equipment and facilities would go for naught. See Judd v. Board of Education, 278 N.Y. 200, 212, 15 N.E.2d 576, 118 A.L.R. 789. But the proverbial Mark Hopkins conception no longer suffices for the country’s requirements. Without buildings, without equipment, without library, textbooks and other materials, and without transportation to bring teacher and pupil together in such an effective teaching environment, there can be not even the skeleton of what our times require. Hardly can it be maintained that transportation is the least-essential of these items, or that it does not in fact aid, encourage, sustain and support, just as they do, the very process which is -its purpose to accomplish. No less essential is it, or the payment of its cost, than the very teaching in the classroom or payment of the teacher’s sustenance. Many types of equipment, now considered essential, better could be done without.

“For me, therefore, the feat is impossible to select so indispensable an item from the composite of total costs, and characterize it as not aiding, contributing to, promoting or sustaining the propagation of beliefs which it is the very end of all to bring about. Unless this can be maintained, and the Court does not maintain it, the aid-thus given is outlawed. Payment of transportation is no more, nor is it any the less essential to education, whether religious or secular, than payment for tuitions, for teachers’ salaries, for buildings, equipment and necessary materials. Nor is it any the less directly related, in a school giving religious instruction, to the primary religious objective all those essential items of cost are intended to achieve. No rational line can be drawn between payment for such larger, but not more necessary, items and payment for transportation. The only line that can be so drawn is one between more dollars and less. Certainly in this realm such a line can be no valid constitutional measure. * * * ”³⁷

About two years after the United States Supreme Court had handed down its opinion in the Everson case,³⁸ the supreme court of the state of Washington decided in Visser v. Nooksack Valley School District No. 506,³⁹ that the payment of transportation to parochial schools violated the state constitution. The court did not feel itself bound by the decision in the Everson case and in that respect stated:

“Our own state constitution provides that no public money or property shall be used in support of institutions wherein the tenets of a particular religion are taught. Although the deci-cisions of the United States supreme court are entitled to the highest consideration as they bear on related questions before this court, we must, in light of the clear provisions of our state constitution and our decisions thereunder, respectfully disagree with those portions of the Everson majority opinion which might be construed, in the abstract, as stating that transportation, furnished at public expense, to children attending religious schools, is not in support of such schools. While the degree of support necessary to constitute an establishment of religior under the First Amendment to the Federal constitution is foreclosed iron consideration by reason of the decision in the Everson case, supra, we are constrained to hold that the Washington constitution although based upon the same precepts, is a clear denial of the rights herein asserted by appellants.”

The most recent appellate court case, which we have found, that strikes down transportation of nonpublic school children on public school buses is that of McVey v. Hawkins, 1953, 364 Mo. 44, 258 S.W.2d 927. Here the Missouri supreme court, sitting en banc, delivered a per curiam opinion that transportation of parochial school pupils on public school buses was an expenditure of public school funds for other purposes than the support and maintenance of free public schools as directed by the constitutional and statutory provisions of the state, notwithstanding the claim that the buses furnishing such transportation did not travel any greater distance or by any different route or make any special stops and that, consequently, no additional expense or outlay of any kind was incurred by the furnishing of such transportation. Without mentioning the Everson case, the court expressly .rejected the “child-benefit theory.”

In spite of appellees’ contention that the Everson case is controlling in the case at bar and contrary to the opinion of the District Court for the District of Alaska that it felt itself bound by the holding in the Everson case,⁴⁰ we propose to follow the reasoning of the Courts of Washington, Missouri, Delaware, Wisconsin and Oklahoma and hold that transportation of school children to nonpublic schools at public expense would be in contravention of our state constitution.

There remains for consideration the claim of the appellees that the minutes of the Alaska constitutional convention make it unmistakably clear that, in refusing to add the term “indirect” as an amendment to article VII, section 1, of the constitution, the delegates explicitly intended to continue and not to eliminate bus transportation for nonpublic school children. The minutes of the convention⁴¹ do reveal that the Committee on Health, Education and Welfare Provisions in drafting the last sentence of article VII, section 1, which provides that “No money shall be paid from public funds for the direct benefit of any religious or other private educational institution,” considered the words “direct” and “indirect” and felt that the words “or indirect” after the word “direct” should not be used for the reason that “they would reach out to infinity practically” and shut out the children in private schools from such free care as was being given by the state welfare department to all children.⁴²

Several delegates to the constitutional convention in the floor debate on the issue of whether section 1 of article VII should be amended to include the words “or indirect,” mentioned transportation but only one of them, Mr. Buckalew, expressed an opinion in the matter, stating

“Mr. President, I don’t think the question has been answered yet by any of the persons who have spoken on this subject. If the word ‘indirect’ is in there, it is going to eliminate almost any kind of aid. It will, for example, eliminate the free lunch, eliminate bus transportation, eliminate for example, if we had a school or an institution where they had a school, it would eliminate the State giving any support to the child because that would be indirect support to the institution. I think when the members vote on it, I think they ought to understand the word “indirect” cuts out everything, just eliminates all kinds of support.” ⁴³

From such a state of the record the ap-pellees would have us infer that the minutes of the constitutional convention make it unmistakably clear that the delegates intended not to eliminate free transportation for nonpublic school children. We find no such clear meaning expressed in those minutes as would give us any reliable assistance in interpretation. As Professor Willoughby once observed, “Every member of such a convention acts upon such motives and reasons as influence him personally, and the motions and debates do not necessarily indicate the purpose of a majority of a convention in adopting a particular clause.”⁴⁴ We feel that the delegates to the Alaska constitutional convention and the people who by their vote ratified the constitution left it to this court to decide whether free transportation of children to nonpublic schools would constitute a “direct” benefit to the schools. If they had intended otherwise, we are certain that the framers of our constitution would have followed the example set by the people of New York and New Jersey and settled the controversial issue by providing in the constitution itself for transportation of school children to nonpublic schools at state expense.⁴⁵

Earlier in this opinion we stated that we did not consider Chapter 39 a valid exercise of the police power of the state.⁴⁶ That point needs to be clarified. It has been said that the police power— broad and comprehensive though it is— may not be exercised in contravention of plain and unambiguous constitutional inhibitions ⁴⁷ In Board of Education of Baltimore County v. Wheat,⁴⁸ Judge Parke, dissenting, conceded that the sovereign state has inherent and reserved police power to enact laws to promote the safety, health and general welfare of society but stated that this power must be exercised within constitutional limits. It was his opinion, and that of the other two judges who concurred in the dissent, that the extension of the exercise of the police power to the transportation of school children, because of the dangers of pedestrian travel by children upon the public highway, would be of doubtful legality even if it were an effort of the state to protect, without discrimination, all school children.

The summary judgment is reversed with directions to dismiss the action.

NESBETT, C. J., concurs.

1 . This judgment permanently enjoined the defendant Commissioner of Education and the Alaska Board of Education from (1) withholding school bus transportation to the plaintiff class on the basis of their proximity to a public school which they do not attend; (2) applying any other distance test than that of the distance from place of residence to the school of actual attendance for the purpose of determining rights to school bus transportation; and (3) refusing to stop and discharge children attending nonpublic schools at a point along the route nearest to such schools.

2 . Section 37-7-1, ACLA 1949.

3 . Section 37-2-8, ACLA 1949, as amended, SLA 1957, Ch. 51 (§ 37-2-8, ACLA Cum.Supp.1957).

4 .Chapter 39, SLA 1955: “Section 1. The Legislature recognizes these facts:

“(a) Attendance at schools for all children between the ages of seven and sixteen years is compulsory, except in those cases where a child, residing more than two miles from his school, is not furnished with transportation.

“(b) The health of all children is endangered by requiring them to walk long distances to school in inclement weather; and their safety, also, is endangered in requiring them to so walk to their schools along highways that have no sidewalks.

“Therefore, in order to protect the health and safety of all school children in Alaska, and to achieve the objectives of the compulsory education laws of Alaska, this statute is enacted.

“Section 2. In those places in Alaska where transportation is provided under Section 37-2-8 ACLA 1949 for children attending public schools, transportation shall likewise be provided for children who, in compliance with the compulsory education laws of Alaska, attend nonpublic schools which are administered in compliance with Sections 37-11-1, 37-11-2 and 37-11-3 ACLA 1949, where such children, in order to reach such non-public schools, must travel distances comparable with, and over routes the same as, the distances and routes over which the children attending public schools are transported.

“Section 3. This Act shall be administered by the Commissioner of Education under the direction and supervision of the Territorial Board of Education, and the total cost of all such trans-poration shall be paid from funds appropriated for that purpose by the Legislature.”

5 . 37 Stat. 512, 48 U.S.C.A. § 21 et seq.

6 . 37 Stat. 514, 48 U.S.C.A. § 77.

7 . See note 4 supra.

8 . State ex rel. Van Straten v. Milquet, 1923, 180 Wis. 109, 192 N.W. 392; State ex rel. Traub v. Brown, 1934, 6 W.W. Harr. 181, 36 Del. 181, 172 A. 835, writ of error dismissed 1938, 9 W.W.Harr. 187, 39 Del. 187, 197 A. 478; Judd v. Board of Education, 1938, 278 N.Y. 200, 15 N.E.2d 576, 118 A.L.R. 789, reargument denied 1938, 278 N.Y. 712, 17 N.E.2d 134; Gurney v. Ferguson, 1941, 190 Okl. 254, 122 P.2d 1002; Sherrard v. Jefferson County Board of Education, 1942, 294 Ky. 469, 171 S.W.2d 963; Mitchell v. Consol. School Dist. No. 201, 1943, 17 Wash.2d 61, 135 P.2d 79, 146 A.L.R. 612; Visser v. Nooksack Valley School Dist. No. 506, 1949, 33 Wash.2d 699, 207 P.2d 198; McVey v. Hawkins, 1953, 364 Mo. 44, 258 S.W.2d 927.

9 . 1938, 278 N.Y. 200, 15 N.E.2d 576, 582, 118 A.L.R. 789.

10 . Board of Education of Baltimore County v. Wheat, 1938, 174 Md. 314, 199 A. 628; Adams v. County Commissioners of St. Mary’s County, 1942, 180 Md. 550, 26 A.2d 377; Bowker v. Baker, 1946, 73 Cal.App.2d 653, 167 P.2d 256.

11 . 1946, 73 Cal.App.2d 653, 167 P.2d 256, 260.

12 . 161 A.2d at page 775 note 2.

13 . 1942, 294 Ky. 469, 171 S.W.2d 963.

14 . 1945, 133 N.J.L. 350, 44 A.2d 333, reversing a judgmént of the New Jersey Supremo Court in favor of the taxpayer, Everson, who had challenged the right of the Board to reimburse parents of parochial school children for bus faros paid in connection with school transportation. The latter case is reported as Everson v. Board of Education of Ewing Tp., 1944, 132 N.J.L. 98, 39 A.2d 75.

15 . 44 A.2d at pages 340-341.

16 . See note 45 infra.

17 . Everson v. Board of Education, 1947, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, 168 A.L.R. 1392.

18 . Id., 330 U.S. at page page 4, 67 S.CT. at page 505, 91 L.Ed. at page 717, 168 A.L.R. at page 1398.

19 . Everson v. Board of Education of Ewing Tp., 1945, 133 N.J.L. 350, 44 A.2d 333, 336; see also Visser v. Nooksack Valley School Dist. No. 506, 1949, 33 Wash.2d 699, 207 P.2d 198, 202.

20 . The same holds true under the provisions of article VII, section 1, and article IX, section 6 of the Alaska state constitution.

21 . The majority opinion was written by Justice Black, with Chief Justice Vinson and Justices Murphy, Reed' and Douglas concurring. Justices Jackson, Butledgo, Erankfurter and Burton dissented.

22 . These standards are set forth in sections 37-11-1 to 37-11-3, ACLA 1949 and pertain to teachers’ certificates, final eighth grade examinations and; diplomas, and attendance and annual reports.

23 . Pierce v. Society of Sisters, 1925, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468.

24 . The present action was not commenced until January 30, 1959, twenty-seven days after the effective date of the state constitution.

25 . This argument may have stemmed from the opinion of the lower court in which it was stated that “the efficacy of this clause of the Organic Act obviously yielded to the force and language of the Alaska Constitution from and after January 3, 1959, in particular Article VII, Section 1 thereof.”

26 . Webster, New International Dictionary, Unabridged (2d ed. 1960).

27 . 1 Willoughby, Constitutional Daw of the United States § 7, at 11 (2d ed. 1929).

28 . 60 P. at page 137.

29 . Annotation, 1947, 171 A.L.R. 1072-1079, in which the rule is stated and many cases in relation thereto are cited and discussed.

30 . People ex rel. McClelland v. Roberts, 1896, 148 N.Y. 360, 42 N.E. 1082, 31 L.R.A. 399; Fontenot v. Young, 1911, 128 La. 20, 54 So. 408; Peck v. Tug-well, 1941, 199 La. 125, 5 So.2d 524; Lee v. Superior Court, 1923, 191 Cal. 46, 214 P. 972; Boyd v. Olcott, 1921, 102 Or. 327, 202 P. 431, 448; Northern Wasco County People’s Utility District v. Wasco County, 1956, 210 Or. 1, 305 P.2d 766, 771; Porto Rico Brokerage Co. v. United States, 1934, 71 F.2d 469, 23 CCPA 236.

31 . The “child benefit theory” seems to have been first advanced in support of a Louisiana statute providing for the appropriation of public funds for the purchase of school books for nonpublic school children. In Borden v. Louisiana State Board of Education, 1929, 168 La. 1005, 123 So. 655, 663, 67 A.L.R. 1183, the Louisiana supreme court hold that ■such appropriation was for the benefit of tho children and the resulting benefit of the state. Throe of seven members of the court took the view that the statute was unconstitutional, stating that “the maintenance of private or sectarian schools, however valuable may be the work which they perform, is not a public purpose so as to justify the expenditure of the public money in their support.”

32 . The cases in which the states listed in the text rejected the child benefit theory are cited in note 8 supra.

33 . Board of Education of Baltimore County v. Wheat, 1938, 174 Md. 314, 199 A. 628, 633-642.

34 . Borden v. Louisiana State Board of Education, 1938, 168 La. 1005, 123 So. 655, 662-664, 67 A.L.R. 1183.

35 . Everson v. Board of Education of Ewing Tp., 1945, 133 N.J.L. 350, 44 A.2d 333, 338-343.

36 . Everson v. Board of Education, 1947, 330 U.S. 1, 47-49, 67 S.Ct. 504, 527, 91 L.Ed. 711, 740.

37 . Judge Case of the New Jersey Court of Errors and Appeals, who wrote the dissenting opinion in the Everson case when it was being considered in the state court, pointed out that among the weaknesses in tlie “child benefit” argument, as a means of avoiding constitutional limitations, “are its vagueness and the impossibility of satisfactorily distinguishing one item of expenses from another in the long process of child education.” [133 N.J.L. 350, 44 A.2d 339] He continued :

“We quickly perceive that it [the “child benefit” argument] applies not merely to transportation costs but to the potential costs of the many and varied items entering into modern education. There is no logical stopping point. Related items, already in the public school system, in addition to the vast field having to do with the actual imparting of knowledge, are the installation and maintenance of cafeterias, the preservation and promotion of the health of pupils, the employment of medical inspectors and nurses, the keeping of records of development and growth, and the supervision of athletic activities and bodily exercise. I am unable to distinguish between the logic of using public funds for one as against another of the several parts of the system pursued by the public schools toward ‘the advancement of education, the promotion of literacy and the health and safety’ of the pupils. Every step in the educational process is, presumably, for the benefit of the child and, therefore, theoretically for the benefit of the state. Consequently, if the argument is sound, it is within the discretion of the legislature, free of constitutional restraint, to provide for practically the entire cost of education in private and parochial as well as in public schools.”

38 . Page 936, supra.

39 . 1949, 33 Wash.2d 699, 207 P.2d 198, 204.

40 . The Honorable Yernon D. Forbes who wrote the opinion below, upon which the judgment was based, frankly admitted that if he had not felt himself bound by the holding in the Everson case, he would have adopted the reasoning and decision of the dissenting Justices and ruled otherwise. It was his feeling that the wall of separation between church and state in this country had been weakened by Everson.

41 . All references in this opinion to the minutes and proceedings of the Alaska constitutional convention are to the Records of Alaska Constitutional Convention, now in the custody of the Secretary of State, Juneau, Alaska.

42 . Roland Armstrong,, a member of the Committee on Health, Education and Welfare Provisions, spoke for the Committee and explained to the convention the reasons for the Committee’s action in using the word “direct” as follows:

“ * * * This section gives the education or other departments the right to seek out the children, independent of their religious affiliations, to help them to become a strong and useful part of society wherever it touches health and matters of welfare. We would also point out in the light of letters that have come to this floor relative to the disbursement of funds, denominational or other private institutions, this does not prohibit the use of funds in other educational matters, and I am sure that no one on the committee would object to the inclusion of this word as we have given the amendment here to clarify this one statement. Now it reads as has been amended by the Committee, ‘No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.’ We did this to take any doubt away on the part of this Convention of our motives, and we state that where there are welfare cases for children in homes and when there are indigents in hospitals that we do not wish to interfere with that practice of helping to serve people through those institutions ⅜ * ⅜.” Alaska Constitutional Convention Minutes, January 9, 1956, pp. 55-56.

43 . Id. at 69.

44 . 1 Willoughby, Constitutional Law of the United States § 32 (2d ed. 1929).

45 . New York amended article 11, section 4, of its constitution in 1938, after the decision in the Judd case (see note 8 and page 935, supra), to permit the legislature to provide for the expenditure of public funds for the transportation of children to and from any school. Board of Education of Central School District No. 1, etc., v. Allen, 1959, 17 Misc.2d 1080, 192 N.Y.S.2d 186. New Jersey, on the other hand, adopted an entirely new constitution in 1947 and provided as a part of article VIII, section 4, paragraph 3, thereof that “The Legislature may, within reasonable limitations as to distance to be prescribed, provide for the transportation of children within the ages of five (5) and eighteen (18) years inclusive, to and from any school.”

46 . Pages 937 and 938, supra.

47 . Mitchell v. Consolidated School Dist. No. 201, 1943, 17 Wash.2d 61, 135 P.2d 79, 146 A.L.R. 612, citing authorities.

48 . 1938, 174 Md. 314, 199 A. 628, 633.