DICKMAN ET AL v. SCHOOL DISTRICT NO. 62C ET AL
NO. 62C ET AL
Supreme Court of Oregon
November 15, 1961
March 13, 1962
366 P. 2d 533
Argued September 6, reversed November 15, 1961, petition for rehearing denied March 13, 1962, United States Supreme Court denied certiorari October 15, 1962
Paul R. Biggs, Oregon City, and Roy F. Shields, Portland, argued the cause and submitted a brief for defendants-respondents and intervenor-respondent. With them on the brief were F. Leo Smith and Randall B. Kester, Portland.
Robert Y. Thornton, Attorney General, and Catherine Zorn, Assistant Attorney General, Salem, submitted a brief amicus curiae in support of
Before MCALLISTER, Chief Justice, and ROSSMAN,
O‘CONNELL, J.
This is a suit in equity brought by plaintiff taxpayers against School District No. 62C, its board and clerk, to enjoin defendants from supplying textbooks without charge for the use of pupils enrolled in St. John‘s The Apostle School, a parochial school maintained and operated by the Catholic church. Plaintiffs also seek a judicial declaration that the so-called free textbook statute (
Ivan B. Carlson, a resident within School District No. 62C, whose children were enrolled in the St. John‘s school intervened.
The statute in question,
“337.150 (1) Each district school board shall, in the manner specified in
ORS 328.520 and328.525 , provide textbooks, prescribed or authorized by law, for the free and equal use of all pupils residing in its district and enrolled in and actually attending standard elementary schools or grades seven or eight of standard secondary schools.“(2) For the purpose of
ORS 328.520 ,328.525 and337.150 to337.250 a school shall be standard when it meets the standards of the State Board of Education, except with respect to those standards applying to the ratio of pupils to the acre of school site, the square feet of classroom floor space perpupil and the ratio of pupils to teachers in classrooms, and when all teachers engaged in classroom instruction in said school hold a valid Oregon teaching certificate of the proper teaching level. The holding of such a teacher‘s certificate shall be evidenced by annual registration with the county school superintendent of the county in which the school is situated.”
Plaintiffs attack the constitutionality of the statute on four grounds; (1) it authorizes state aid to religion at public expense in violation of the First Amendment to the United States Constitution as made applicable to the states by the Fourteenth;1 (2) the furnishing of such textbooks constitutes a benefit to religious institutions contrary to the provisions of Article I, § 5 of the Oregon Constitution;2 (3) it, in effect, imposes a tax for a non-public purpose and thus deprives plaintiffs of property without due process of law, and (4) it authorizes the expenditure of money not exclusively for the support and maintenance of the common schools and is, therefore, in violation of Article VIII, § 2 of the Oregon Constitution.3
Plaintiffs rely principally upon the first two grounds in attacking the constitutionality of the statute. The trial court held
For a period of several years the defendant district has furnished free textbooks for the use of the pupils of St. John‘s school. In a period of three school years these books have cost the district approximately $4,000. The books were purchased by the district from money in its General Fund, a part of which was derived from taxes levied upon real property in the district, including real property owned by plaintiffs. Books furnished by the district under
The evidence establishes, and the trial judge found, that the purpose of the Catholic church in operating the St. John‘s school and other similar schools under its supervision is to permeate the entire educational process with the precepts of the Catholic religion. The study guides used by the teachers in St. John‘s school indicate that, to some extent at least, the use of the textbooks furnished by the district is inextricably connected with the teaching of religious concepts. These study guides were prepared by the superintendent of schools of the Archdiocese of Portland. There is no doubt that the teaching of the subject matter in this manner in a public school would be contrary to law.4
Defendants first challenge plaintiffs standing to raise any constitutional issue other than the violation of the due process clause of the Fourteenth Amendment. Plaintiffs have not shown, it is argued, a deprivation of any freedom guaranteed by the First Amendment since they do not sue as school children, parents of school children, or as persons whose own religious liberty is threatened. As will appear below, we have chosen to decide the issues presented in this case solely upon the basis of the Oregon Constitution. It is not necessary, therefore, to decide whether under federal law defendants’ contention with respect to standing is sound.5
In the instant case the issue of plaintiffs’ standing was not raised by defendants’ pleadings. If standing were a jurisdictional matter then, of course, defendants could raise the question at any stage in the proceedings. But we do not so regard it and we hold, therefore, that defendants’ failure to raise the issue by a proper pleading constitutes a waiver of that issue.9
The First Amendment, as interpreted in Everson v. Board of Education, 330 US 1, 67 S Ct 504, 91 L Ed 711, 168 ALR 1392 (1946) and Article I, § 5 of the Oregon Constitution prohibit the use of state funds for the benefit of religious institutions. The principal issue presented to us is whether the expenditure of public funds by the defendant school district for the purpose of furnishing textbooks free of charge to pupils of a parochial school is within these constitutional prohibitions.
We have concluded that the expenditure authorized by
Article I, § 5 prohibiting the use of public moneys “for the benefit of any religious or theological institution,” was designed to keep separate the functions of state and church and to prevent the influence of one upon the other. In this respect our constitution follows the general pattern of other state constitutions and may be regarded as expressing, in more specific terms, the policy of the First Amendment as it has been explained in the Everson case.10
The historical setting in which constitutional provisions such as Article I, § 5 were written and the factors which prompted their adoption have been thoroughly explained elsewhere; it is not necessary, therefore, to restate those observations here.11 We need only say that we regard the separation of church and state no less important today than it was at the time Article I, § 5 and its counterpart in other constitutions were adopted.12
Moreover, the wall of separation has not been re
For the most part these cases afford us little assistance in the interpretation of our own constitution. This is so because in some of them the controlling constitutional provision differs from ours or is seen against a different historical background. In many instances it is obvious that constitutional principles have been sacrificed to serve urgent needs of the
Defendants’ principal argument in support of the statute is that the expenditure of public funds for the purpose of furnishing books to pupils of parochial and public schools benefits the pupils who receive these books and not the schools themselves. The leading case for this proposition is Borden v. Louisiana State Board of Education, 168 La 1005, 123 So 655, 67 ALR 1183 (1929). In that case a statute similar to
This so-called “child benefit theory” has been applied in other cases in which the expenditure of public funds is made for the purpose of meeting the educational needs of pupils, including those attending parochial schools.21 The difficulty with this theory is, however, that unless it is qualified in some way it can be used to justify the expenditure of public funds for every educational purpose, because all educational aids are of benefit to the pupil. This criticism is made in Gurney v. Ferguson, 190 Okla 254, 255, 122 P2d 1002, 1003-1004 (1942). In passing upon expenditures for the transportation of children attending parochial schools the court said:
“* * * It is true this use of public money and property aids the child, but it is no less true that practically every proper expenditure for school purposes aids the child. We are convinced that this expenditure, in its broad and true sense, and as commonly understood, is an expenditure in further-
ance of the constitutional duty or function of maintaining schools as organizations or institutions. The state has no authority to maintain a sectarian school. Surely the expenditure of public funds for the erection of school buildings, the purchasing and equipping and the upkeep of same; the payment of teachers, and for other proper related purposes is expenditure made for schools as such. Yet the same argument is equally applicable to those expenditures as to the present one.”
And, as observed by the same court, if the expenditure is not in aid of schools the use of school funds would be unauthorized and illegal.22
The leading case rejecting the child benefit theory is Judd v. Board of Education, 278 NY 200, 15 NE2d 576, 118 ALR 789 (1938). In that case the validity of a statute authorizing the expenditure of public funds for the transportation of pupils to and from parochial and private schools was in question. 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, 36 Del. 181, 187, writ of error dismissed, Feb. 15, 1938). 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.” Id. at 212, 15 NE2d at 582.
The furnishing of textbooks even more clearly constitutes an educational aid. In the Everson case the expenditure for the transportation of parochial school pupils was upheld on the theory that the state could provide for the protection of all school children from traffic hazards irrespective of the religious or public character of schools which they attended. Assuming that the court‘s reasoning in Everson is sound, it is not applicable to the case at bar. The expenditure of public funds for textbooks supplied to pupils of parochial schools is clearly identified with the educational process, and does not warrant the assumption made in the Everson case that the expenditure is for the general welfare thus justifying the use of the state‘s police power.
The most recent appraisal of the child benefit theory which has been brought to our attention is Matthews v. Quinton, (Alaska) 362 P2d 932 (1961). In that case a statute authorizing the transportation of children attending non-public schools was held to be in violation of the Alaska constitutional provision prohibiting the appropriation of public money for the support or benefit of any sectarian, denominational or private school. After a careful examination of the cases in which the child benefit theory had been considered, the court rejected the theory, holding that the furnishing of transportation to pupils of non-public schools constituted a direct benefit to those schools. Mr. Justice Rutledge‘s dissent in the Everson case was relied upon to support this conclusion. There it was said:
“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 NY 200, 212, 15 NE2d 576, 582. 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.” 330 US 1, 47-48.23
We concur in the view that expenditures which aid a child as a pupil of a religious school cannot in that respect be regarded as serving the public welfare as
It is argued that the aid to school children is for a public purpose because the compulsory school law compels all children to attend school and that the state may, therefore, make expenditures to further compliance. But this begs the basic question—the state may not compel compliance through the device of furnishing aid to religious schools if that aid is in violation of the constitution.26 Moreover, the state does not compel pupils to attend parochial schools; “their attendance upon the parochial school or private school is a matter of choice and the cost thereof not a matter
The theory has been advanced in some cases that since the parochial schools are performing a task which the state itself must perform through the use of the public schools, the expenditures made are not “aid” but “remuneration” for services rendered and, therefore, not prohibited by the constitutional principle of separation of church and state.27 The distinction is specious and its application could be urged in the justification of the expenditure of public moneys for all educational needs of parochial schools.
In the instant case the evidence establishes that the defendant school district expended approximately $4,000 for textbooks used in the St. John‘s school. This constitutes a substantial benefit. The benefit is of such a character as to bring it within the proscription of Article I, § 5.
It seems obvious that as long as church and state continue to exist side by side there can not be a complete isolation of each, with neither exerting influence upon the other. It is to be expected that in the operation of the state residual benefits will accrue to the various religious groups, not because they are religious
Neither the federal nor the state constitutions prohibit the state from conferring benefits upon religious institutions where that benefit does not accrue to the institution as a religious organization. The proscription is against aid to religious functions. The benefits of police and fire protection, sewage disposal, and other community financed services accrue to churches not as religious organizations but as owners of property in the community.28 And, the same principle applies when public expenditures benefit individuals who are engaged in carrying out a religious function. A government pension paid to a clergyman for his services in the Armed Forces may benefit religion but it is not constitutionally prohibited; in such case he receives the bounty not as a cleric but as any other citizen. On the other hand, the state obviously could not pay the clergyman‘s salary. The point is clearly seen by Cushman, Public Support of Religious Educa
“The difference between providing police protection and providing teachers does not lie in the identity of the beneficiary but in the way in which the aid is extended. Aid is not normally extended to individuals or institutions by name, but rather to groups or classes of individuals or institutions. Any individual or institution falling under the restrictions of the law, or falling heir to its benefits, does so only as a member of such a group. An individual may be a pupil, a pedestrian, a property owner and a parent. A church is at once a corporation, a piece of property, a building, a meeting place, a religious institution and a non-profit institution. Furthermore, a church may receive police protection when classed as property, tax exemption when classed as a non-profit institution, sewage connections when classed as a building, and yet be denied financial aid when classed as a religious institution, since such a class may not validly be given public aid. Since the aid goes to groups rather than the individual components of any one group, the eligibility of an institution to receive public aid would seem to depend on which group it is classed in, rather than on its individual characteristics.”29
The author then correctly concludes that where the aid is to pupils and schools the benefit is identified with the function of education and if the educational institution is religious, the benefit accrues to religious institutions in their function as religious institutions. And so it is in the case at bar. Granting that pupils and not schools are intended to be the beneficiaries of the state‘s bounty, the aid is extended to the pupil only as a member of the school which he attends. Whoever else may share in its benefits such aid is an
We recognize that whether an expenditure is an aid to a religious institution in its religious function or in some other capacity is a question of degree. But it seems clear that the line must be drawn to include within the constitutional proscription the furnishing of textbooks to pupils of parochial schools. This conclusion is compelled because such books are an integral part of the educational process. As we have already pointed out, the teaching of the precepts of Catholicism is an inseparable part of the educational process in the St. John‘s school. Considering the purpose of Article I, § 5, we are unable to see any substantial distinction between the furnishing of textbooks and the furnishing of blackboards, desks, laboratory instruments, or other equipment clearly necessary to the operation of the school. In comparing these various essential tools we agree with the dissenting opinion in Everson v. Board of Education of Ewing Twp., 133 NJL 350, 359, 44 A2d 33 (1945) that there is no way of “satisfactorily distinguishing one item of expense from another in the long process of child education.”
It is argued that the strict notions of separation
We are not unmindful of the fact that parents who send their children to Catholic schools must bear the double burden of supporting not only their own parochial schools but the public schools as well. But
Defendants argue that the denial of the use of free textbooks to pupils solely because they attend parochial schools would constitute a violation of the equal protection clause of the Fourteenth Amendment. The argument is without merit. The classification which excludes such pupils from the state‘s bounty is not only reasonable, it is commanded by the constitution itself.
The principle announced in Pierce v. Society of Sisters, 268 US 510, 45 S Ct 571, 69 L Ed 1070 (1925), relied upon by defendants, is not germane to the problem before us. That case simply recognizes the constitutional right of a parent to pursue freely his religious beliefs by sending his children to parochial schools. The court did not hold, nor was anything said in the case from which it could be implied, that the state must pay for the child‘s education if the parent elects to use the parochial schools.
The trial judge was of the opinion that the expenditures in question constituted a violation of the constitutional principle of separation of church and state, but he concluded that he was bound by Everson v. Board of Education, 330 US 1, 67 S Ct 504, 91 L Ed 711, 168 ALR 1392 (1946). A decision of the Supreme Court of the United States holding that certain legislation is not in violation of the federal constitution is not an adjudication of the constitutionality of the legislation under a state constitution. In such a case
The judgment is reversed. The trial court is directed to enter a decree in accordance with the prayer in plaintiffs’ complaint.
ROSSMAN, J.
I dissent.
Everson v. Board of Education, 330 US 1, 67 S Ct 504, 91 L Ed 711, 168 ALR 1392, spent unusual effort upon a case which was governed by the same principle of law that governs the case at bar. It stated the principle with clarity and sustained the constitutionality of the challenged statute. We should apply the same principle of law in this case and recognize as valid the statute under attack. Certainty of law governing the relationship between the state and religious organizations, although difficult of expression, is peculiarly desirable. Confusion and controversy are certain to arise when the United States Supreme Court and this court interpret differently a constitutional principle that should have a single meaning. The Everson decision affords a good opportunity to achieve a high degree of certainty. It should not be cast aside; it should be embraced.
I will now state an additional reason for my dissent. It is commonly recognized that if more than one reasonable interpretation can be placed upon a statute
A free textbook statute, applicable only to public elementary schools, was enacted in 1931. Oregon Laws 1931, Chapter 61, § 1, p. 74. Oregon Laws 1941, Chapter 485, § 1, page 878, amended the act just cited by expanding its scope. The amended act read:
“The board of directors of each and every school district in the state of Oregon hereby is authorized, empowered and directed, in the manner hereinafter provided, to provide textbooks, prescribed or authorized by law for the free use of all pupils residing in its respective districts and enrolled in and actually attending standard elementary schools. For the purpose of this act a school shall be standard when it meets the standards of the state board of education and all teachers engaged in classroom instruction in said school shall hold a valid Oregon teaching certificate of the proper teacher level. * * *”
It is clearly evident that the legislature, in making the amendment to the 1931 enactment, wished to improve the quality of the denominational schools. It, therefore, rendered textbooks available also to pupils who were enrolled in denominational schools that met qualifications for “standard elementary schools.” But prior to the 1941 act a denominational school could select any textbook it preferred and use it in the classroom. Let us at this point assume that the members of the 1941 Legislative Assembly, in voting to extend
The majority concede that although churches and denominational schools pay no taxes they nevertheless receive many benefits from public moneys. For example, if a fire breaks out in a church the local fire department undertakes to extinguish it. That obviously is done because the church is a local asset and also because the fire, if left unextinguished, might spread to other structures. If a thief invades a church or denominational school he is prosecuted by the public authorities because if he were left to go his way the property of others might be taken. However, in all instances of that kind the benefits to the religious organization is secondary or incidental. For example, the street adjacent to a church or denominational institution may be improved at public expense, not for the purpose of conferring a benefit upon the church, but in order to enable traffic to move expeditiously. A church or a denominational school likewise may be
“* * * Furthermore, a church may receive police protection when classed as property, tax exemption when classed as a non-profit institution, sewage connections when classed as a building, and yet be denied financial aid when classed as a religious institution * * *”
Classifications of that kind solve nothing. They represent wishful thinking whereby cases are solved according to preconceived ideas. To me, it seems we must in all instances endeavor to determine why the statute under attack was enacted. A good instance is
“There shall be appointed by the board two chaplains of the Oregon State Penitentiary, two chaplains of the Oregon State Correctional Institution and two chaplains of the MacLaren School for Boys. One shall be a non-Catholic clergyman, the other a Catholic clergyman of the archdiocese of Oregon, in each instance. They shall:
“(1) Look after and attend to the spiritual wants of the inmates of the penitentiary, the correctional institution and the MacLaren School for Boys and of all other public institutions in Marion County, when called upon so to do by the inmates, respectively.
“(2) Visit their respective charges for the purpose of giving them religious and moral instructions * * *”
That enactment represents a clear appropriation of public funds for religious purposes. Yet, when the legislature enacted the statute it was not prompted by a desire to improve the finances of any church,
As I have indicated, the act in question clearly can be deemed an educational act. Its purpose was to bring to the avail of the pupils in denominational institutions textbooks which the legislature favored. The legislature was not concerned with any church, but with the youth of Oregon and believed that textbooks chosen by the State Board of Textbook Commissioners would afford superior education to those selected by the denominational schools.
I add that a parochial school is in no sense enriched through the operation of the statute under attack. If, prior to the enactment of
“All textbooks purchased under
ORS 337.150 are, and shall remain, the property of the school district. Upon receipt thereof, each of said books shall be immediately and properly labeled as the property of the school district.”