*1 Abington Township Rhoades v. School District.
Worrell v. Matters. *2 Mus- C. J., 1966. Before April Bell, Argued Roberts, O’Brien and Eagen, Jones, Cohen, manno, JJ. him Walton Coates, with Roberts, J.
Victor plaintiffs, for Brenard Seidel, & High, Roberts Swartz, others. Rhoades G. specially Mm Leo
William P. -with Thorn, Pfeffer, McConemy argument, & for and Thorn, admitted plain- Brian & Ohrenstein, Richard, Disanti, Betty Worrell. J. tiff, Abington Town- R. Rieder, defendant,
Percival ship District. School George Thompson,
George W. for defendant, W. Matters. Barry for in- Reed and Gibbons,
D. Gibbons, tervening A. and others. Paul Grubb defendants, Attorney
Walter E. General, Alessandroni, 8. David John McOord and Edward P. Friedman, him *3 Attorneys Deputy Dickey, Commonwealth, for General, intervenor. Paul Thomas J. B. for Ball, intervenors,
William and others. Berger, Greenberg, Edward
David Harold B. Boken, Berger Shapiro, for School Dis- & Cohen, and Cohen, Philadelphia, trict of intervenor. Ray- Joseph Harrison, III, W. Rabin,
Walter W. Bradley, intervenors, R. for Norman mond Jenkins and Eininger and others. Robert S. the Public Schools for Friends of D. Killian,
John Pennsylvania amici curiae. Council Churches, and Tálente and Paul for Penn- D. W. Bruton, William sylvania for Freedom, Citizens Educational Federation, amicus curiae. Pennsylvania Chapter for Na- Yaros,
Gilbert Commission on Law and Jewish Public Affairs, tional curiae. amicus January 17,
Opinion Me. Justice Musmanno, 1967:
The Act June 15, 1965,1 amending §1361 alia: Public School Code inter 1949,2 provides, “When is made board of school direc provision by a transportation tors resident and pupils the board of school directors schools, provision shall also make for the transportation free who attend and pupils regularly nonpublic elementary schools not high operated profit.” On August Brenard G. Rhoades and five 30, 1965, in others filed a suit equity Montgomery County, the Act of June Act averring known as 15, 1965, No. was unlawful unconstitutional, invalid, court enjoin the defendant School asking District of Township from into Abington entering any contract under the indicated legislation.
On September J. Worrell filed a 1, 1965, Betty similar suit Delaware the school County against directors officers Rose Tree Union School Dis- trict. General of Attorney the Commonwealth petitioned this Court to take original jurisdiction the two actions and issued certiorari equity we to bring disposition. the actions before us for The Attorney General intervened both so did other actions, parties, all of whom filed answers and briefs. All par- counsel in the both ticipating argument, orally printed *4 positions their and brief, presented ably have vigorous- ly- on deeply,
The issue one which adversaries feel is points in the do opposing view although reality contention might ap much as at first bristle as 3 plaintiffs The and likely. seem those who pearance 1 133, 91, §13-1361. 24 P.S. P. L. Act No. 2¡Act 1949, 30, 24 §13-1361. P. L. P.S. of March wholly distinction, unnecessary in the a cumbersome To avoid Montgomery County in discussion, the suit filed and between in
support position their Act 91 an infringement see on the Amendment First the Federal Constitution and Ar- 18; to Article Article and §3; I, III, §§17 and 2 ticle Constitution. X, Pennsylvania §§1 purpose The of Act as in announced its is title, provide wealth and “health, safety children of the The Commonwealth,” phrase “health, wealth and is not to be or safety” treated as a lightly “The superfluity. Legislature cannot be deemed to in- tend that superfluous its im- language and without port.” (Daly Pa. Hemphill, 263.) larger number of schools are Pennsylvania located so far away homes the pupils who attend them that pupils are either required to walk or long distances to make use of vehicular transporta- In tion. recent the foot years because of traveler, volume of motor traffic which more more ap- proaching appearance the grim of a foreign invasion, is in constant jeopardy death or physical disable- as he ment, warily proceeds, carefree over of the nation. And highways those who ride in private cars can never be because of certain, the ever-increas- ing violence number of collisions, they will arrive at their destinations with only the ailments they enjoyed when started on they their journeys. before a United
Testimony States Senate Commit- tee advanced the dire prediction that: “It seems prob- able that over the next 5 years we will kill on the high- ways this country many people as we lost action all four enemy years World War II. In the next can expect we decade, to kill more than people 500,000 injure about 40 million.” (89th 2d Sess. Rec. Cong. Cong. 6576.) peril view over hovering our streets and like a roads miasmatic those fog, charged with concern County, parties arguing filed in Delaware one the uncon- stitutionality opinion, plaintiffs. Act 91 will be called
20? for the children are safety duty bound to devise methods and means for saving the little travelers harm on to their and from way school. Obviously in to provide manner these youthful wayfarers with a fair of protection measure against mis highway hap is to them keep off pedally the roads and to trans port them in vehicles so constructed that formidably off and they may ward to the maximum extent parry, from other possible, aggression vehicles. The school bus with its large heavy wheels and steel fabricated to body seems be the to answer the worrisome problem. Pennsylvania Secretary Public in Welfare, testifying on House Bill (later to become Act before the 91) Senate Education said: “. . . school Committee, bus transportation clearly involves the health safety our children. The busing school children is for their protection against hazards of the and of roadways traffic, against dangers occasioned by exposure against evils of child weather, molestation.”
He stated further respect “with to injuries,” a person is five times as safe in a school bus as in a car. “With times as respect person is ten death,” support safe a school bus as a car. of this he cited “In statement, statistics: there were 2.3 per deaths 100,000,000 miles, cars, compared .2 per deaths, 100,000,000 miles school buses.”
The need for the collective motorized transporta- tion of school children apparent is thus as as a washed- away opponents of Act bridge. 91 do not contest indeed even the desirability, imperativeness, children to transporting school by means of school but buses, argue they may not be used to ferry nonpublic children attending schools which, course, parochial include schools. They point to the First (March Hearings Education before Senate Committee 14-16 24, 1965). Constitution the United States
Amendment *6 no shall make “Congress which inter law declares, alia, of respecting argue an establishment religion,”5 against that Act 91 offends it. the English
Despite flexibility the wondrous it is still difficult to can conclude see how one language children on a a placing school bus establishes that, if transported And even the children to religion. are in addition state-approved school to which, teaching offers the world this guidance subjects, faith, still not does establish Our religion. body whole school is on the predicated proposition law that once children are educationally served to State according their extracurricular activities cannot criteria, adverse- ly affect constitutionally. State, the Pub- Indeed, lic School Code specifically concept embraces the nonpublic schools, title explaining that the law public to “the school relates system, certain including provisions as applicable private well to parochial schools.”
In his concurring opinion in the case of McGowan v. 366 U.S. Maryland, 420, 467, Justice Frankfurter said: “It was on parents that reasoning are also at parochial to send liberty their to schools which meet the educational reasonable standards the State . held in . this Court ., Everson case that ex- penditure of public funds to assure that children at- kind of school every enjoy the tending relative security to rather than left walk being buses, hitchhike, not an unconstitutional even ‘establishment’, though such cause some expenditure may children to go to parochial would not schools who otherwise have gone.” Supreme of the United States has held that wholly applicable has made all Amendment been to First the States (School Abington District Amendment. Town the Fourteenth 203). Schempp, ship 374 U.S. up compel Pennsylvania State all children laws years public age attend but school, school—not any long approved an curriculum school so teaches requirements. and meets other State The State awards nonpublic the same scholastic credits school students as those are earned school students. say grossly illogical, It would therefore, State which does differentiate between nonpublie pupils, grades, promotion, so far as graduation are cleaves a line of distinction concerned, according they between them to whether arrive at the private on school motor cars or on buses, foot. *7 only any
Not do law reason refute such dif- good dispels government but economics ferentiation, concept. huge required budgets The to maintain public system every- our school a matter of is concern to body. imperative The need the best in education youth for the of our Commonwealth convinces the inevitability heavy civic-minded citizens taxes expense, weight to meet the but it does not lessen the carry. any of the burden financial he must Therefore, procedure may lighten that burden, consistent maintaining highest State educational stand- warmly taxpayers. welcomed ards, Thus, every nonpublic pupil picked up school on the road public weight a that much is lifted from bus, taxpayer back of the because maintenance of non- public depend upon public does not schools, course, funds.
Nearly one-fourth the school children in Penn- nonpublic (mostly sylvania denominational) attend parents nonpublic Since schools. public pay using pub- school taxes, schools still without it been has facilities, lic school estimated that the tax- they required provide payers, are not since teachers, supplies nonpublie equipment for the school chil- equal benefited to an amount financially are dren, Comm one-third the entire educational budget if onweath.6 nonpublic schools were Indeed, the increase in tax burden to the abolished, citizens the Commonwealth would be and the Com noteworthy monwealth put would be hard to provide the buildings, and equipment teachers for the flood of additional chil dren released into their care and responsibility.
Where children are of the Com involved, laws monwealth and the of our decisions Courts make no public distinction between school and nonpublic school pupils. 1911 the Pennsylvania Legislature enacted a law for the providing establishment of manual train all ing public schools for children, nonpublic. It specifically pupil stated “no shall be refused ad mission to the courses in these additional schools or reason of departments, by the fact that his elementary or academic education is being has been received a school public other than a school.” When a 13-year- old pupil private school endeavored to obtain this manual training, taught school in Altoona, the school district involved refused him admittance, Act arguing was unconstitutional in that private would “to give sectarian schools the use of for the moneys raised schools, contrary to Arti cle and Article X, §2, Constitution.” IX, §7, *8 Act stated specifically the manual training school “an part public was be integral school system Despite in such school district.” this which language 6 Budget Message Fund of Governor General William W. Scran Budget February 7, (b) ton, 1966-1967 1966 Commonwealth Pennsylvania Expenditure (e) Pupil, Average “Current Per States”, Membership 1965-1966, Daily 17, p. 20, for Selected Table Statistics, 4, Statistics, Educational Bureau of Vol. Selected De Instruction, Pennsylvania partment Commonwealth of Public (1966). Section 401, Act May 18, 1911, P. B. 309. schools further in public private went much and linking being here in an educational than Act 91 undertaking our held that the Act was constitution discussed, “The and addi benefits of these stating: advantages al, and tional schools means of education improve not ment are restricted to the at pupils regular public tendance at the elementary pursu schools and are prescribed the entire but ing elementary courses, to be to all ‘persons intended free in such dis residing (Comm. trict’. . .” v. School District Altoona, Pa. 224.)
If the of a pupil private school attend a manual may training which law school, part has become “public school he not system”, certainly may under present be excluded from a bus law, itself, stationary classroom for instruction. mobile, The provides Public School Code with- children, out between distinguishing nonpublic schools, many facilities, as, instance, medical, (§14-1401 dental and nurse services et driver seq.); and milk food safety (§15-1519); supply (§13-1335); board and tuition lodging and mainte- (§13-1367), nance of deaf and blind, palsied cerebral Public School Code (§13-1376). provides school district funds be used for traffic may safety board of purposes: “The directors school dis- any trict alone or with another district or acting districts, political contribute funds to another subdivision may stop for the erection maintenance of and go signal blinkers or other like traffic control lights, devices.” P. L. March added 10, 30, §526, Dec. (1949, 1, §5-526). L. P.S. §1, P. logic basis sustained
On the reasoning nonpublic to allow absurd children into would but deny services them a these ride on all a bus conforming to the requirements a school to attend program. educational the State *9 But in the case plaintiffs Montgomery County that Act 91 is because five argue unconstitutional the schools that educate children the school riding operated buses are owned and Roman Catholic Church and “a plaintiffs that, therefore, contend, and direct effect of neces- primary expenditures attendant maintenance sary reasonably upon such and operation is to advance Roman Catholic Church, particular local Roman Catholic Churches, religion thereof.”
This pressed same was argument the case Everson v. Board 330 U.S. Education, where of a constitutionality Jersey New statute was attacked because authorized reimbursement to parents paid fares for transporting public carrier children public and Catholic attending schools. The Supreme Court of the United States ruled that the statute did not offend against the Federal Constitution: “. . . we cannot the First say Amendment prohibits New Jersey tax-raised to spending funds pay the bus of parochial pupils fares school part as a of a general under which it program pays the fares of pupils at- public and other tending schools. It is undoubtedly true that are to helped get children to church schools. a possibility There is even some of the children to not be sent the church might schools if par- to compelled their pay ents were children’s bus fares pockets out of their own when transportation pub- have been paid lic would by the State. The exists where the possibility same state requires a local company provide reduced transit fares to school including children those attending parochial schools, municipally owned transportation or where system all school carry children undertakes free of charge. state-paid policemen, detailed Moreover, to protect and from church going schools from the would traffic, real hazards serve much very the same *10 state result as much the same accomplish and purpose transportation free to guarantee intended provisions for the school deems to be best the state kind which a to risk refuse And parents might welfare. children’s traffic accidents danger the serious to children their to approaches the from parochial schools, to and going policemen. Similarly, not protected were which children to to their permit be reluctant parents might off from had cut such the state schools which attend fire and ordinary police services as government general public high- for sewage disposal, connections protection, off church Of cutting and sidewalks. course, ways indis- separate and so from these so services, schools off from would religious function, marked the putably operate. to more difficult the schools make far not of the First purpose the obviously But such is supplied.) (Emphasis Amendment.” found that the Supreme States Court The United met New there under consideration schools parochial The contributed requirements. State Jersey’s it did them. schools; support to not no these money for the the provided busing The legislation provide did “no than gen- more parochial their help parents get children, regard- program eral and religion, safely expeditiously less of their the schools.” law was Therefore, accredited Amendment. The First same is true odds at with Act 91. discussion the Su- its of Pennsylvania’s of Pierce to the case Court referred preme Society of 510. State had Sisters, There, Oregon 268 U.S. under penalty of requiring parents, pun- a law passed their send children to disobedience, pub- ishment Court held that Supreme The such a law lic schools. interference an unreasonable with lib- constituted so violated Fourteenth Amend- of parents erty “The child said: is not Court The mere ment. those who nurture him State; direct creature coupled high duty, destiny right, Ms have him for obliga- additional prepare to recognize (p. 535) tions.” Court Supreme on the Pierce
Commenting case, said in the Everson case: “Parents dis- may, education their under state charge duty compulsory send their children to than a rather laws, public school if the school meets the secular educa- im- tional has requirements power which the state pose.” (p. 18) Supreme pointed also out that the First *11 in addition
Amendment, to the abjuring establishment of also declared pro- that there must be no religion, hibition in the “free exercise” of religion. while Thus, government not use a to a may legislative tool build church, neither may employ bull- parliamentary dozer to demolish a church constructed. “State already power is no more to handicap be used so as to religions than it tois favor them.” p. 18) (Everson, supra,
Religion part is of the American of life. way Be ginning the of landing on Columbus the shores of San Salvador when the Genoese navigator offered of prayers gratitude God for the faith which sus tained him in preparation the and the for, perilous achievement his of, hazard-laden voyage, continuing through the Mayflower Compact which is headed by solemn sacred words: “In the name of God Amen!” and upon calls Deity guidance and in support new life begin on the American carrying on continent, through the Declaration of In dependence and the Constitution of the United States supplication their reverent Supreme Being, and fast in standing papers State pronouncements of religion our Presidents, inseparable from the his of tory the United States. The United Supreme States said of case Abington School District v. Schempp, 374 U.S. 213: “. . . This background is continu- through in onr life today evidenced Presidency of office from the in our oaths ance God.’ help ‘So me of the final supplication, Alderman through Congress provides each House of the Likewise of an sessions Chaplain opening prayer, its crier in a short open by this Court are declared the grace of invokes phrase the final ceremony, in our manifestations there are such God. Again, are of our citizens who where those military forces, to en- wish under service military the restrictions an last only year worship. gage voluntary Indeed, that indicated country official survey 64% membership. Census, Bureau our have church people Statistical Abstract U. S. Department Commerce, than less ed. while (88d 1962) 48, of the United States It p. at 46. can Id., no whatever. profess religion 3% as in the beginning, be truly therefore, today, said, in the people who, our national life reflects a ... ‘earnestly praying, are Madison, words of the Uni- Lawgiver the Supreme duty bound, may them into measure which every . . . guide verse ” [blessings. his worthy ...].’ the dissent in the writing Even Justice Rutledge, “Our constitutional that: acknowledged Everson case, *12 value or the necessity . . not the deny . does policy or Rather it observance. teaching training, religious (p. 52) exercise.” their free secures of Common- of the courts this session daily Every “God save the Com- adjuration: the open with wealth Honorable Court.” Each witness and this monwealth required our Courts is to in all avow an oath takes who the whole and truth, nothing the truth, tell that he will he “on will answer the for which last truth, but the ceremonies where patriotic At the na- Day.” Great lift their the citizens to voices sung, anthem tional ” motto ‘In God Our be our Is Trust.’ “This the words: Flag Pledge Allegience of of the United the The proclaims Nation under God.” “One States against prohibition the establish- constitutional religion deny free of was never intended to the ment penned religion. exercise of Thomas who Jefferson, Independence, Declaration also wrote who Virginia’s Religious proclaimed Liberty, Bill for omnipotence “Almighty of the Author of the Universe: attempts to God hath created mind that free; all by temporal punishments it or influence or burthens, incapacitations, beget only civil tend habits hypocrisy departure from and are a meanness, being plan Holy religion, author our who body yet propagate Lord both of not chose mind, byit coercions .” on either. .
Any interpretation legislation, which therefore, deny voluntary religious would fullest freedom in worship only contrary not would to these American expressions historical but offend faith, would also against bell-clanging the First Amendment with its proclamation freedom. It was because Founding possibility Fathers foresaw forces working destroy influences the faith of man in a Supreme Being they made the free exercise of re- part ligion swing pendulum of the same prohibits religion. the establishment of a State Clauson, 343 Zorach Supreme U.S. 306, said: “The First Amendment, however, does every say respects and all there shall be a separation of Church and State. studiously Rather, specific ways, defines manner, in which there dependency or shall be no concert union one on the religious people . . a other. We are whose institutions presuppose Supreme Being. guarantee We the free worship dom to as one chooses. We make room for as variety of beliefs and spiritual wide creeds as the necessary deem ... man we find needs no eonstitu- *13 tiona.1 which makes it for requirement necessary govern- ment to be hostile to and to religion weight throw its scope to widen the against efforts effective influence.”
From this ex- pulpit same American historical Court in Everson: . . position, Supreme declared New cannot in ex- Jersey hamper its citizens the free ercise of their cannot own religion. Consequently, exclude individual Mohammedans, Catholics, Lutherans, Baptists, Jews, because Methodists, Non-believers, their or lack from faith, benefits it, receiving of public welfare legislation.”
Act 91 legislation welfare and, reservoir of public all races and welfare, religions may drink in the of normal unimpededly thirsts. quenching Indeed one of the fundamental in reasons the State a civilized provide is to for the society public welfare.
The Everson case is the law land rules squarely against the contentions of the plaintiffs Courts far below so as the Federal Constitution is concerned. Our Court upheld own the Everson case by name Schade v. Institu- Allegheny County tion 386 Pa. In that District, attempt 507. case an was made to unconstitutional declare the Juvenile Court Law of Allegheny County June P. L. 3, 1933, and the Institution County District Law of June 24, P. L. 2017 because they provided for the pay- ment of tax revenues raised by Allegheny County denominational or sectarian or institutions homes care and maintenance of or board, neglected de- pendent children on order of Allegheny County’s Juve- nile Court. The complaining plaintiffs argued these violated the Pennsylvania laws Constitution which “to prohibits appropriations any or denominational corporation or institution, sectarian association.” This contention of rejected plaintiffs denominational to the sectarian payments defend- *14 “governmental of ‘establishment toward tended ants consequently Four- religion’, are violative and, speaking for Mr. Justice Amendment.” teenth Jones, unnecessary to de- said: “It is Court, our unanimous Supreme Court The contention. much time to this vote appellant’s adversely principle, to the it settled has, supra, position. Board of Education, See Everson v. of tax funds held that a use it was State’s where pupils transportation to and from sectarian of for the promote of did not to the establishment schools serve religion.” against hold that Act 91 does not offend
We here or Fourteenth Amendments to the Constitu- the First transgress any pro- it tion of the United States. Does provisions Pennsylva- vision or of the Constitution of phases already on of nia? We have touched certain the State Constitution connection with a discussion alleged trespassing on the of domains the United argu- specifically States. We now examine will prohibitory ment that Act 91 cannot under survive provisions organic of our own State law. plaintiffs contend
The that Act 91 Art. violates §3 of the State Constitution: “All men have a natural right worship Almighty and indefeasible to God ac- cording to the dictates of their own no consciences; compelled right sup- man can of be to erect or attend, port any place worship, any ministry or to maintain against authority any consent; his no human can, rights control or case interfere whatever, with the preference given by and no shall ever conscience, any law establishments modes wor- ship.” Township Abington
The precisely brief asserts “compels property all the Act 91 real owners of the support places Township worship and to main- particular religious ministry against tain their con- re- sent; (2) gives preference law certain ligious worship.” establishments modes of These are so feeble of merit they assertions must in the fall breeze of When slightest analysis. Constitution was debated conven- being no reference made to tion, subject pupil was transportation. meant Supporting place worship providing funds the maintenance of a The church. phrase could referred motor certainly have transportation. concept of a horseless was buggy *15 as in on unimaginable air miles walking above the earth was in inconceivable 1946. The first automobile to awe human excite communities beings, and startle not honk animals did a horn or turn wheel a until 1892. it can be con- Thus, stated with historic that clusiveness the framers of the Constitution could not had in mind a prohibition have motor against transportation for children when declared no that they citizen of the State should be to required support a place of worship. quixotic
Even in a school bus cannot imagination, be place a regarded worship. The general gayety, levity juvenile frivolity prevails among which children riding any transportational out vehicle rules solemnity place a worship. Nor can trans- porting a child a church-connected school re- be garded as a supporting place worship. The purpose of the school bus is to take children to a structure where will receive a secular they education. Thus the bus public serves a secular, as stated in purpose, “it is much late to too that Everson, argue legislation intended to facilitate opportunity get a no public purpose.” secular education serves parochial
The fact that addition to pupil, re- a secular is offered ceiving education, religious guid- away public cannot take nature of ance, cur- studies—a curriculum riculum drafted he and super- explained Supreme The the State. vised has a pri- that a law “follow it that does Everson provides purpose because than rather vate indi- reimburse paid be funds will that tax-raised in a spent way them of money on account viduals public program.” furthers a which prefer- “gives that Act 91 plaintiffs’ assertion establishments law to certain ence by face because on its self-defeating is worship” modes preference Act nothing speaks there is Indeed Act states that nonpublic schools. ride nonpublic pupil may school buses on which the routes.” bus public school be over established “shall reach the eventually students nonpublic while Thus, that bus provision there is no nonpublic school, that doorstep them to the that school, to take them at their So far as non- pick up homes. bus will children are they must, concerned, togo Mohammed the buses rather sense, universal than to them. the buses come noted Act It is also particularly makes provision parochial no schools. It special applies *16 children all-sweepingly nonpublic to attending schools, those have an schools association a whether with church In it is significant or not. that the addition, nonpublic of be the donee or schools will funds busing facili- have any nor will control over them. ties, they do not plaintiffs charge nonpublic The schools under Act be the recipient of financial would, bene- even to But if this were be an fits. indirect result of fact itself this would not legislation, unconstitu- In order to the law. come tionalize within the constitu- financial benefits ban, tional to accruing a nonpublic have to be direct would not merely inci- peripheral. or In supplemental dental, Hysong v. Gal- District, School Borough litzin Pa. com- enjoin to party a sought school district plaining order who a members of religious as teachers employing maintenance, their their above earnings, all contributed order of which members. they to the were complaint through rejected stating This our that: is none of busi- Justice “It scholarly Dean, into this nor of inquire these ness, appellants, of sound mind and matter. American men and women, of disposition of such can make twenty-one years age, notions. We as their own surplus their suits earnings inquire far any it, as law warranted might so well, he what him the admitting bar, of a before lawyer, make an- surplus his to do with his fees, intended did his money a test of admission. What he swer could no affect his to be sworn as an way right impertinence therefore it court, officer this would be in us inquire.” plaintiffs find Act 91 a Article violation reads, of the Pennsylvania Constitution,
III, §18 alia: appropriations inter “No shall made chari- or purposes educational benevolent per- table, any or nor to or community son denominational sec- any or corporation tarian association.” institution, In Schade v. Inst. Allegheny County District, supra, Common the statement the Court of we affirmed “ that: County ‘The cost of Allegheny Pleas children either State neglected maintenance nor a charity benevolence, is neither the County ” Educating duty.’ governmental but a and if dis- duty, excessive governmental the state the place around gov- a wall education, builds tance that wall. level must ernment Act 91 does not require any appropria-
Moreover, Commonwealth. fact, Abington from the tion District admits this in its brief: “The Township School No. 91 of June the Act 15, 1965, drew draftsmen *17 are and will be made appropriations not by that so but Assembly, instrumentalities thereof General no Act is drawn so Further, (school boards). in- from the or from its state money passes directly in- treasury any into the sectarian strumentalities stitution.” Allegheny the Schade v.
Although Abington cites conten- support Inst. its County supra, District, it is a those against we have seen sword tions, rather than a shield for it. Our Court contentions payments sup- made the institution ruled that “in effect neglected legal payments porting to the child.” The school buses under Act are op- of the children erated for the benefit who ride not for the benefit of the church asso- may in which the children ciated with the school receive a education. State-supervised A public department fire is maintained by the taxes no one but would be so people, shortsighted that firemen had no argue duty to extinguish a con- which was flagration consuming no matter church, denomination. Policemen what are assigned to at and about churches no duty but one would say that this is an illegal assignment duty. Churches and regardless of establishments, form creed, part mosaic of our whole civilized society and should, protection receive the do, the State of their “ ‘The Constitution physical properties. pro- does not hibit State or of its any from agencies doing busi- denominational or ness with sectarian nor institutions, debts to them just when paying incurred at its its approval. direction Numerous cases can be such where readily visualized situations have occurred: of the bill an injured i.e. payment employee to a ” hospital/ (Schade v. sectarian Allegheny County p. 512). Dist., supra, Inst. brief cites Article Abington §1 State “The General Assembly
Constitution: shall provide for support maintenance thorough and effi- *18 the children all wherein public of schools, cient system may Commonwealth of six age years above the of this destroys this argues . .” and be educated. approach even It does not of Act 91. constitutionality pro- The constitutional of Act 91. range firing within provide Legislature mandates the in question vision sys- and efficient thorough “of a for the establishment there not say but it does public tem of schools,” supported by to those supplemental not be schools may prohibited provision If constitutional the State. this then every of other schools, or existence the creation to be dis- would have the State private be absurd. of would course, mantled, which, money that: “No of Article states Section of schools support for the raised for the to or used appropriated Commonwealth shall sees this Abington of school.” support sectarian any out life of Act crushing another bulldozer section off its the bulldozer itself throws Abington but 91, of section “one namely, statement, track its own to school relating Public School sec. Code, viz., 1401, private to children in extend health does services, for the bene- public expenditures schools and results attend they children of school whether age, fit of all Of the health of all private schools. course, the Commonwealth is matter residing children within . General . Assembly. concern of legitimate and dental examinations as health such Programs are unrelated to the ages ‘sup- of certain all children ” school.’ under Indeed, existing sectarian any port tax-supported schools receive in sectarian law, P. L. (Act July 15, 1957, health services. L. P. 24 P.S. 29, 1961, September §25-
amended, 2505.1.) all children in health Commonwealth
If the concern General As- legitimate matter ais their also be safety a matter of would why sembly, Assembly? legitimate concern the General As al- ready Pennsylvania quoted, Arlin M. Secre- Adams, tary busing Welfare, Public said: “The of school protection against children is for their hazards roadways against dangers and of occasioned traffic, exposure against evils of child molesta- weather, tion.” Assembly appropriate
If the General can act and *19 onslaughts diptheria, save children from the small- pox impotent and other infectious to is it diseases, protect pneumonia-provoking them from the blasts mangling the winter, fenders automo- drunk-driven depraved bile, the lecherous advances of the highway? molester on the transportation
haveWe seen that the bus author- pub- ized Act 91 must traverse routes which lead to parochial lic schools. Are children on these to routes left to be the culpably mercies inclement weather, negligent drivers and children disturbers? In not a picking up few instances only the school buses many empty school children travel with seats. Is a nonpublic school child to be denied a seat in an un- leaving plod weary filled him bus, on miles foot? With such school expending buses on the road, no extra gasoline pick up nonpublic school they are children, parents to return home and private ask their trans- portation beyond supply? their means to
In all the briefs which opposition have been filed in to Act there is not one or remotely statement word suggesting transportation nonpublic that the slightest children will pub- deleterious to the individuals lic, pro- involved, the educational gram contrary, of the State. On the we have seen how busing protective this school will be of the health and safety of the children. busing such addition, be salubrious and will educational for the children in nonpublic that school children mingle, will learn and soon are same converse re- youthful These everywhere. riders, regardless speak the same salute ligious attachments, language, play the same same at the same Flag, games, laugh entertain respective par- the same love for their jokes, and demonstrate the same devotion to ideals ents, of our All country. this comes under canopy preserving the welfare and of the chil- health, safety one of the most fundamental dren, responsibilities provided for in State, specifically the Public School Code of the State. the plaintiffs that Act
Paradoxically, argue goes too far and that it does far then, go enough. They complain that provide statute does not for trans- portation of children who live close to their schools. But if the school is close enough walk must to, why there be transportation? vehicular trip Sufficient is the distance thereof. plaintiffs
Then the say students pri- attending for profit vate schools are omitted from the statute. *20 private cases of schools where education is imparted, on a profit it can be assumed that if basis, the parents or guardians expensive can afford special for tutoring their they can afford to children, provide private safe transportation for their children. filed in
The brief behalf of plaintiff in the Delaware case County complains that “nonpublic school children do not live near who an established bus route still face the will same traffic hazards as did they be- fore.” The obvious answer here is that if these students are confronted dangers with such as will justify extend- scope ing General Act, can Assembly for that but it is provide extension, no reasonable argu- ment to that because a statute say does not pro- make for a minimal hypothetical vision hazard, should multiple peril. proved ignore no be- analogy brief there is argues
This same for lunches transportation provision and the bus tween nonpublic children, specify- and medical care a child things “Lunch and medical care are : ing of he attends irrespective whether must have, In our it is that food for the accepted school.” society of education no than necessary mind the form is less With medical care, food the stomach. regard of means transportation bus be the supplying may from illness-producing exposure protecting need for which would lessen the medical care. It was before that Act argued also us 91 will “ac- of our fragmentation celerate the society increase conflicts.” The exact true. The reverse is different to one religions get closer the less another, will the reason for dissension. We can take judicial of the fact that in recent years note noble have efforts in establishing been made inter-faith leading councils, hope to the fulfillment wiping away antagonisms different churches between and beliefs. Bringing chil- dren on their together way to the temple buses can learning only help hasten eventual attain- ment the true brotherhood of man. The friendships they made children as travel side by side and in to and from conversational school and intimacy, home, the most formative their years will lives, grow with the stronger passing the years, increasing mutual is the understanding which most potent welder common cause for peace happiness. plaintiffs argue
Finally, Act 91 is uncon- of “vagueness.” stitutional because The only thing in this entire situation is the vague charge vague- plaintiffs. It advanced splash ness like a *21 no and target that has no rain leaves durable impres- A of Act 91 reading will reveal sion. its stark sim- specificity secularization. It plicity, has but one to place nonpublic that is aim schools, the mat- in the transportation, of student same ter classification so ob- nonpublic as the schools, long schools serve school curricula. There is nothing either the Federal or State the laws constitution, or in justice pro- fundamental Commonwealth, hibit so an salutary objective. complaints
The in the courts below are dismissed, each party pay own costs.
Concurring Opinion by Mr. Justice Jones: With the result reached majority this Court I am in accord.
It is my opinion that the Act of June 15, 1965, P. L. 24 P.S. 133, (amending §13-1361 §1361 the Public School Code of Act of March 10, 1949, L. P. 24 P.S. “for 30, §13-1361), which, welfare health, safety children of the Com requires that monwealth”, school districts under cer tain provide circumstances free transportation pupils nonpublic attending elementary high schools operated not is valid profit, legislation. prin cipal to such challenge legislation proceeds upon the it theory offensive to both is the Constitution of the United States1 and the Constitution of Comm this onwealth.2
As to
this
whether
statute violates the United States
Supreme
the decision
Constitution,
Court of the
in Everson
United States
v. Board
Education, 330
U.S.
In Commonwealth, this and guardians law to compelled by children are send such children, to school. Pierce to a certain up age, Society of 1 Specifically, Amendment. the First I, §3, III, X, Specifically, Article §18 Article and Article §2. *22 228 the U. S. 571 268 U.S. 45 S. Ct. 510, (1925),
Sisters, if school parochial ruled that, has Supreme requirements state, of the secular educational meets to such and who children parents guardians send education” parochial satisfy school the “compulsory of mandate the state. purpose
The of the instant statute is primary insure the and the of whose safety well-being children, parents and guardians compelled are law send by them to while such children are trans- school, being ported and from such school whether the school, parochial. an The statute constitutes exer- police power cise of the of the Commonwealth; its emphasis upon is welfare safety they being while are from transported and not upon the nature of the school to or from which transported. are they being aim Its not re- secular, ligious.
The our framers of Constitution contemplated that the church and kept the state be separate and apart and that the state maintain a status of impartiality all neutrality toward religions religious be liefs. The instant legislation “neither advances nor religion” inhibits the constitutional (See: sense Pa., School District Abington, Township, v. Schempp, 83 Ct. U.S. S. 203, but (1963), simply pro method of safe vides a transportation for children performing while state-compelled duty attending school. neither my view, the U. S. Constitution nor the
Constitution this Commonwealth prohibits or pro- so this statute vital scribes to the well-being chil- their pursuing dren education. by Opinion
Concurring Me. Justice Robeets: plaintiffs’ thrust of attack on the Act of June P. L. P.S. 133, (hereinafter §13-1361 re- separation it is that violates the 91) ferred to as Act and state mandated Constitution chnrch provisions various and that violates United States I concur Pennsylvania. of the Constitution Court, all but one member this shared view, holding Everson case forecloses this Court of sepa- guarantee violates the federal the statute *23 admitting It even my ration. is also view that, of expenditure additional require the statute will Act 91 does busing funds for the school children, of Pennsylvania. not violate the Constitution their to the Constitution asserting challenge no than invoked less plaintiffs have Pennsylvania, our Constitution: following provisions the six inde- “All men have a natural Article I, §3: to God worship according to right Almighty feasible can of consciences; dictates of their no man own place to or compelled support any be erect right attend, his or to maintain any ministry against worship, no human ease what- authority any consent; can, of conscience, or interfere with rights control ever, to ever be law preference given by any and no shall or modes of worship.” establishments appropriation “No shall be made to Article III, §17: institution not or educational under the charitable any other than nor- Commonwealth, control absolute for professional law established mal schools for the schools of the State, teachers training of all the of two-thirds members elected a vote except by House.” to each appropriation “No shall be made
Article III, §18: or purposes educational benevolent charitable, for nor to community any or denominational person any corporation or institution, association: and sectarian pen- be made for appropriations may That Provided, for military service and to blind gratuities or sions years age and for twenty-one upwards, persons dependent having assistance mothers and to without persons adequate means of aged support, in the form of or scholarship grants higher loans purposes educational residents Commonwealth except enrolled institutions higher learning, no or educational scholarship higher loans grants persons shall in a theo- purposes given enrolled or school of seminary theology.” logical Article “The General IX, Assembly shall not au- §7: any thorize county, city, township incorpo- borough, rated district to become a stockholder in any company, association or or to obtain or corporation, appropriate or to loan money for, its credit to, any corporation, institution or association, individual.” Article “The General X, Assembly pro- shall §1: vide for the maintenance and support of a thorough system and efficient all schools, wherein children of this Commonwealth above the age of six years may be and shall educated, appropriate at least *24 million one dollars each for year that purpose.”
Article X, “No raised money support §2: of schools of the Commonwealth shall be ap- propriated to or used for the support of any sectarian schools.”
A harmonious of reading these six provisions forces tome an observation which I deem crucial to the set in plaintiffs’ which the ting challenge must be con sidered : Article Although I, and Article §3 clear X, §2 of ly separation establish a wall between the Common wealth and religious institutions, more recently adopted Article seems to III, contemplate §181 certain in which money instances may properly be ex in the course of pended educational activities having a connection with church-related institutions. The last of proviso Article part III, §18, suggests to me of November Amendment 1963. of scholar- for the payment sanction constitutional state church-re- in those higher education ship grants no I can not see institutions teaching theology. lated III, of Article interpretation other reasonable §18’s and its silence of schools specific theological exclusion at other conducted institu- on the matter of programs of higher learning. tions of erect- separation
That limits to the wall there are conclusion ed is a by Pennsylvania Constitution constitutional required language is not only which but realities life practical demanded itself, there must community a modern interdependent where of contact between the necessity points be many all whether institutions, agencies government inevitability church-related or not. It is the these permitted points undoubtedly contact which has pro- successful significant challenge, without exist, police, of many governmental services—fire, vision the conduct benefit some sense sewage—which of hard reali- institutions. Viewed terms religious not mere to a it is benefit religion therefore, ties, to vio- provided by government a service which causes our late Constitution. provision governmental a general service,
While church-related not institution, may benefits a which alone it is clear that for that reason unconstitutional, language separating church and for the constitutional vital effect it was meant have by have state must be some areas and some services there authors, its may provide institu- government from the difficulty gleaning The real tions. *25 of our constitutional document phrases sweeping be drawn. line must where place in this case, well as the opinion defendants upon main rely in the the so-called child of draw the line separating the constitu- theory benefit unconstitutional. Given the from the presump- tional 232 constitutionality
tion in favor of the
of
acts
Legislature2
given
duty
accept,
this Court’s
palpably
Legislature’s
unless
unreasonable,3 view
as to
the reasonable relation of statutes to the
safety and
health,
I concur in
welfare,
the view that
safety
Act
object
91 is a
protec
measure whose
is the
tion of children from
agree
road hazards.
I also
the Court that such a conclusion is a crucial factor in
determining
constitutionality
my
of Act 91. It is
constitutionality
belief,
legisla
however,
directly
tion which
indirectly
benefits
or
a church-re
may
lated institution
merely
not be held constitutional
purpose
because it is determined that the
or effect of
legislation
is the welfare of children
for that
or,
any
proper object
legislative
other
matter,
concern.
prohibition
Our
any compelled
Constitution’s
sup
port
place worship,
of a
ministry
maintenance of a
preference
religion encompasses
only
pro
scription of financial
religion,
aids
any
but also
governmental
other
creating special
action
government
approval of or
involvement with
activities.4
background
And,
of the Commonwealth’s constitu-
2 E.g.,
Township
Prichard
v.
Dist.,
Williston
School
Pa.
394
“
489, 493,
380,
(1959).
Assembly
147 A. 2d
383
‘An Act of
will not
clearly, palpably
be declared
plainly
unconstitutional
unless
”
Constitution,’
Daly
Hemphill,
263, 271,
violates tbe
v.
411 Pa.
191
835,
;
Valley
(1963)
Allegheny
A. 2d
840
Chartiers
Joint Schools v.
County
Directors,
520, 546,
487,
Bd.
School
418 Pa.
211 A. 2d
(1965) ;
Battista,
652, 659,
Milk Control Comm’n v.
501
413 Pa.
198
840, 843, appeal dismissed,
3,
(1964).
A.
379 U.S.
2d
233
on freedom of religion suggests
pronouncements
tional
if
prohibition
that
of
aid to religion is,
such
strongly
of
than the
financial
proscription
stricter
anything,
non-financial governmental
aids.5
such
Moreover,
pro
or
approval
constitutionally
involvement
a measure need not be
blatantly
violative
scribed,
as a statute
attendance at a house
compelling weekly
of worship. Far less overt
of involvement and
forms
in
association
also be
my
constitutionally
view
would,
I
can
void,
imagine
though they
measures which,
come within the child benefit
would
arguably
theory,
institutions
such
bring government
religious
implicit
close association as to
virtue of
constitute,
proscribed
government
sanction
presence,
“preference”.6
“support”, “maintenance”,
Thus
to me in the in
persuasive
what is ultimately
stant case
that Act 91 is a
only
measure,
is
welfare
but also the fact
of
transportation
that
students is,
in the
phrase
separate
“so
Everson,
indisputably
7
marked off”
from functions
sense associated
any
I accept
with
other
con
religion.
though
words,
but
clusion that not
actual
only
teaching
religion,
also the conduct of
other
many
programs
parochial
is infused
schools,
with
seems
significance,
to me clear that
process
transporting
parochial
students
bus is so devoid
any psychologi
let
cal,
alone
it does not
religious, significance,
bring the
into an association
government
with
implies
approval
proscribed
sanction
5
(1957 ed.) ; .Bnckalew,
Encyclopedia Americana 512-15
An
21
Pennsylvania
(1883).
5
Examination
of the Constitution
6
Borough
Dist.,
Hysong
Compare
v.
School
164 Pa.
Gallitzin
opinion).
482,
(1894) (dissenting
658-62,
629,
484-86
Atl.
See
Herr,
132,
(1910) (per
229 Pa.
Finally, 91 senting opinions are in their that Act incorrect view is unconstitutional virtue of its scheme classifica tion. It be not must remembered that “courts may question the wisdom of the classification un legislative less there can be no it”8 found reasonable for ground and that “the reasonableness of the made classification is for the in the Legislature first instance.”9 Legis lature’s exclusion of children operat schools attending profit ed for may have been a judgment motivated by that families means sufficient such school afford are like ing not, families of students non attending profit schooling, deterred by cost ensuring their children travel to and from school aby safe transportation. method I fail to see why would not for basis classification within reasonable this Court’s above mentioned test. toAs Mr. Chief Justice contention that Act 91’s exclusion of children Beli/S operated schools for attending profit reveals it as sole intended to benefit ly sectarian education, answer 91 simple: Act includes not only children attending 8 Philadelphia Bd., Loomis v. School Dist. 428, 432, 376 Pa. 103 769, (1954). See Commonwealth v. A. 2d 771 Assur. Co. Life Penna., 370, (1965), appeal 214 419 Pa. A. 2d 209 dismissed, 384 (1966). U.S. 86 S. Ct. Philadelphia Bd., supra School Loomis Dist. note 8 at 2d 771. A. at schools not chil- operated sectarian but also profit, dren attending non-public schools wow-sectarian, operated profit.
Mr. Justice Mr. Justice Eagen and Mr. Jus- Jones, tice join opinion. this concurring O’Brien
Dissenting Opinion by Mr. Bell: Chief Justice Is the Act of June 15, 1965,* §1861, which amends of the Act of “Public March known as the 10, 1949,** School Code of Constitutional under both the 1949,” Constitution the United States and the Constitution Pennsylvania? sought Each of the present actions prohibit expenditure the defendant school district’s of public funds for purpose trans free furnishing portation to pupils non Catholic and other attending profit sectarian schools, authorized the aforesaid *28 ofAct 1965. amending
Prior to the aforesaid 1965 Pub amendment to the lic School of pro the Public School Code Code, §1361 vided that “the Board only of in any School Directors school district out of the of may, funds the district, provide transportation resident pupil any for free to and public schools***. . .” from
The Act of 1965 provides: General pertinently “The Commonwealth Assembly Pennsylvania here- enacts as follows: Section 1. Section act of 1361, March L. (P. known as the 10, 30), ‘Public School amended to Code read: 1949,’ provided 1361. When “Section of school “The board directors any school district funds of the provide out of the for may, district, * 133, L. §13-1361. P. P.S. Act No. ** §13-1361. L. P.S. P. *** ours, throughout, except underlinings appear Italics where in a statute. pupil transportation* any from to and resident
free any points in the public to and from schools pur any provide for in order to tours Commonwealth pursuits pose educational with the connected provision pupils. by board of school is made When pupils transportation for the of resident directors public direc school and from the board schools, transportat provision for free tors also make shall nonpublic pupils regularly ion** elemen who attend operated profit. high tary not for Such schools nonpublic provided pupils transportation attending for elementary operated profit high schools shall be over routes. established school bus Such pupils transported point or shall be to and points on such routes nearest or most convenient pupils school such attend. . .” Amendatory Legislature In the Act of 1965 the language the clearest directed boards school direc (in any Commonwealth) tors school districts in this (under circumstances) public use certain for the funds transportation pupils regularly free who non attend public elementary high op schools which are not profit*** provision erated whenever is made such transportation pupils a board for the of resident to and from the schools. complaints
The essential averments before us pursuant Amending are that to the a school dis- Act, * by private conveyances, conveyances rail- electric ways or other common carriers. Section 1362. *29 ** also, by “Section 2. The See amendments made shall this act any way payments limit or not be so construed as to in reduce the by help the Commonwealth to now made various school districts to transporting pupils defray cost and the the additional in- costs by furnishing transporta- boards of school in the directors curred amendments shall be in under said included tion amounts may received from be reimbursement Commonwealth as provided law.” now *** provisions pertinent. limitations not and here with appropriated tax agreed supply, trict has to or has transportation purpose money supplying, free for the pub- pupils attending nonprofit outside to schools County) (Delaware system. lic school In the Worrell transportation will action it is averred such supplied pupils attending In schools. to “sectarian” par- plaintiffs County) (Montgomery the Rhoades case, Township Abington They ticularize. aver that nonprofit schools owned District there are five School operated by these and the Roman Catholic Church, independent parts schools are sectarian and are of an system for the teach- maintained Church school such particular ing propagation and that and its faith, furnishing transportation parochial school to operation necessary a children is function such schools. furnishing free trans
Plaintiffs contend that the portation by attending school districts to children sec public funds to or tarian schools constitutes a use of clearly is for the benefit of and there sectarian schools (1) fore First Amendment to Federal violates (2) (a) (b) Constitution and also Article I, §3, (c) Article Article of the Consti III, §18, X, §2, Pennsylvania. They tution of further contend that the purpose protection alleged Act, viz., safety attending of children sec- welfare* health, * Pennsylvania Secretary Welfare, of Public Arlin M. Mr. hearings Adams, testifying before at the Senate Educa- transportation clearly Committee, school bus in- “. . . tion said: busing safety health of our children. The volves roadways against protection hazards of the their children is weather, by exposure dangers traffic, against occasioned and of there were 2.3 deaths against molestation. child evils 100,- compared death, per cars, miles, .2 100,000,000 per person respect injuries, miles, 000,000 buses. With in school respect car. as in a With in a school bus safe times as five is in a school a car.” as safe bus as times person ten death, require transportation say, the Act did strange However,
238 discrimina- nonprivate
tarian and is schools, unjustly and is a and a tory subterfuge sham merely for finan- cial aid to sectarian schools. For so example, far health children and are safety (1) young concerned, private unprovided (2) are and attending for, schools public and sectarian young schools attending schools who do live near bus (a) an established route or (b) who live within a mile a half of and public sectarian unprovided school they are attend, and hazard- for, (3) young children who have to cross ous streets near un- city their school a are large city protected unprovided and for.
The principal districts by defense raised the school and by also pur- Commonwealth is the “sole that pose and effect” of the pro- 1965 Act is to Amendatory mote the health and safety, welfare of children attend- ing nonprofit nonpublic, schools the same manner as health and safety, welfare children presently at- tending public schools are and similar pro- promoted, tection children attending private schools is unnec- essary irrelevant.
The Commonwealth further contends that the fact the Act is part the Public Code no School is of and the significance, policy the Common- wealth has utilized the Public School Code and funds bus, although parties all their briefs discuss the issues transportation by busing. on Moreover-, the basis will be testimony upon majority Opinion Adams’ neither Mr. which the relies, Message the State of nor the Commonwealth delivered Pennsylvania (William Scranton) the Governor W. to the Gen January Assembly, 5, 1965, legislation which eral recommended transportation attending provide for children bus free protect safety nonpublic in order to the health and schools of such parties children, upon rely, the Commonwealth and which other Pennsylvania Board, Labor Relations Bowers 402 admissible. 480; 557-558, Estate, 215, 224, Henderson 2d A. 395 Pa. 167 Pa. Boardman, Co. v. 892; 450, 454, Transit National Pa. A. 2d 239. Atl. particular instrument as the school districts variety carrying welfare, on means a wide no safety have health activities some *31 support schools. realistic connection to the important Nearly are factors all of the facts and vigorously upon; parties widely agreed and differ upon (1) deduced or drawn inferences and conclusions meaning (2) inter- the correct and from the and facts, provisions pretation pertinent and of the of the Federal (3) of the and the decisions Su- Constitutions, State preme Court of the United States. Constitution? the Federal
Does the Act Violate
proposition that
We
fundamental
start with the
every
presumed
Constitu
is
and
Act
both valid
Corporation,
Dairy
tional. United States v. National
Kentucky,
88;
Madden v.
309 U.S.
32;
83,
The First Amendment to the Constitution provides: “Congress pertinently shall States United religion, respecting or an no law establishment make prohibiting free . . .” thereof; exercise
Although Amendment clear- this clause the First “religious” Congress, only ly on restraint constitutes Supreme Court hold that recent decisions Amendment has made the First Amend- Fourteenth upon upon Con- States as well as restraint ment a Abington Township gress. District v. School Schempp, and cases cited Mur- therein; 374 U.S. Pennsylvania, 319 108; U.S. Everson v. v. dock 1; 330 U.S. Illinois Education, ex rel. McCol- Board of 333 Education, U.S. 203, Board Zo- 210-211; v. lum Maryland, rack v. Clauson, U.S. 306; McGowan 420; U.S. Torcaso v. 367 U.S. Watkins, 488; Engel v. 421. Vitale, U.S.
The short Exer 15-word “Establishment” and “Free generated cise” clause the First Amendment has many widely divergent different and To views. state par generalities easy, the law broad terms apply ticularize and to it is often difficult. Because great change thoughts in the life and habits and people, of the American of education indeed itself, days “Framing from the of our and because Fathers,” questions very and issues are often close and over lapping conflicting and at times filled with emotion, drawing the net result has been the of a line which is shadowy thin often or elusive* between Consti permissible tutionally imper Constitutionally and the *32 missible.
So far as the “Establishment Clause” is concerned, present I believe the leading cases are ruled the ease of Everson v. Board supra, 330 Education, U.S.,** of where the strikingly facts and issues are similar. A Jersey New statute authorized district boards edu- * concurring Opinion, Mr. Abington Bbennan, Justice in a Schempp, U.S., supra, School District (pages v. 230, 231, said 245) duty expound : “The meaning Court’s historic the of the Constitution has encountered few issues more more [or intricate demanding emotion'] filled with or more than that of the relation religion ship and the between schools. . . The fact is that separates which the secular line from the sectarian in the Ameri difficulty defining boundary elusive. The can life is paradox liberty. precision in a central to our scheme of inheres .. . Ballard, 78, 95] v. U.S. shows how [U.S. case elusive The injunction enforces the Amendment’s of strict Une which neu hostility manifesting religion. trality, official no toward . .” while ** Rutledge lengthy dissenting Opinion filed Mr. Justice Doug- joined. Furthermore, Mr. Justice three other Justices Engel Vitale, 370 U.S. after expressly stated las he believed thoughtful he and rest consideration further Opinion in their mistaken in that case. majority were in Everson transportation of chil- for cation make contracts op- private schools dren to and from other than schools profit. by resolution erated for A of education hoard paid parents authorized the reimbursement for fares transportation by public carrier attending Catholic schools. The Catholic operated superintendency Catho- of a schools under the priest gave re- lic in addition to secular and, education, ligious Faith. A district instruction the Catholic taxpayer challenged validity Con- Federal under the they far stitution of the statute so and resolution, transporta- parents authorized reimbursement to for the attending tion Without of children sectarian schools. deciding whether the exclusion reimbursement parents operated private attending of children schools protection profit equal constituted a denial Supreme the Constitu- sustained law, tionality of Act held: expenditure au-
1. The of tax-raised funds thus public purpose, violate thorized was for a and did not process Amendment; the due of the Fourteenth clause 2. The statute and resolution did not violate provision ap Amendment of the First which was made plicable to the states the Fourteenth Amendment, prohibiting any respecting an “law establishment religion.”* in Everson v. Board Court, Education, *33 (pages pertinently 17) said : 14, 16, “Their deci-
U.S., of the State [the Courts] decisions show sions, however, drawing difficulty legisla- the line between tax the * evils, (a) struggles persecu- the reviewed the Court and Tlie going on abroad for had been centuries and from time tions which religions, between various in the Colonies and time God; (b) and reliance of faiths; belief our the Colonists in and adoption which induced debates the (c) the historical Amendment. First
242 the gen- welfare
tion funds provides which insti- to support designed that is eral which religion. which teach tutions ‘es- consistently cannot Jersey “. . . New Amendment of the First religion’ clause tablishment insti- support of an tax-raised funds contribute church. faith of any tution which teaches the tenets On the other the amendment hand, language other citizens its Jersey hamper commands that New cannot religion. Consequent- the free exercise of their own it cannot Lutherans, exclude individual ly, Catholics, Non-believ- Mohammedans, Baptists, Jews, Methodists, or ers, Presbyterians, faith, the members other any because their or lack of from faith, receiving it, of public benefits legislation. welfare . .
“Measured these that we say cannot standards, the First prohibits Amendment spend- Jersey New tax-raised ing parochial funds to pay the bus fares of school pupils part as a of a under general program it which pays pupils fares of public and attending other schools.” present
Plaintiffs plausible support arguments their contentions in unconstitutionality and argue, ter alia, (1) 330 no Everson, longer U.S., supra, the law because three of the five Justices majority that ease have died and another one changed has his views,* (2) subsequent decisions of Supreme Court have abandoned or changed some of the reason ing upon statements which the majority relied that case. See and compare, Abington School Dist. v. Schempp, U.S., supra; McGowan v. Maryland, v. 420; U.S. Engel Vitale, U.S. 421, 442; Sherbert 374 U.S. 410. Verner, * agree decision, with the I Court’s but opin- is this writer’s dissenting ion, Supreme Justices of clearly Court em- phasize Education, v. Board in Everson U.S., supra, analogies employed majority Supreme some opinion support neither its are convincing. relevant nor
243 In issues order to contentions and the determine the re- raised by analyze the shall briefly we parties, upon relied view the have been subsequent cases which by one or more of parties. v. in Supreme Court Illinois ex rel. McCollum
Board as viola- 333 U.S. struck down Education, in tive of the Amendment of religion First the teaching public by supplied school outside teachers buildings by for chil- various under “released time denominations a dren” between them and the Board arrangement re- Education. Under the Board this arrangement, periods leased the school children for limited for teach- allowed the use its school buildings of various denominational outside reli- ing beliefs by gious teachers.
On in Supreme the other hand the Court Zorach v. held “released Clauson, U.S. Constitutional time” program education in children the premises schools, such off periods brief schools released parents whose desired them to denominational receive in education their and Sunday own Churches Schools. Supreme v. Engel Vitale, U.S. 421, 422, declared Unconstitutional directive Board of Education to cause the to be following prayer at presence said aloud each class of a teacher of each school student beginning day, although no was to attend or to compelled join prayer over objection: or his parents’ “Almighty his we ac- God, dependence upon our and we knowledge Thee, beg Thy our our upon teachers and our blessings us, parents, Country.” to me is incomprehensible. decision
This Cf. also, rel. McCollum Board Illinois ex Education, supra. U.S., Everson v. other hand, Board
On Education and affirmed followed McGowan v. been has Mary- Abington supra, District School land, 366 U.S., Mary *35 supra. Schempp, v. v. In McCowan 374 U.S., Opinions cover supra, in Court land, where divided prior ing analyzed pages decisions 162 and reviewed 443-444) quoting approval (on pages and after with Everson v. Board held Constitutional Education, Maryland prohibited on generally law the sale many Sunday although of all it contained merchandise, specific exceptions and act to retailers limited the pur county. one The Court inter that the held, alia, pose public wel and for effect of the statute the was day religion, aid but to set aside a fare, i.e., large. rest and at recreation* Abington Schempp, In U.S., School District v. 374 supra, 205-222) (pages again we the Court said : “Once upon scope provision are called to consider the of the First Amendment to the United Consti- States ‘Congress tution law which declares that shall no make respecting religion prohibiting an establishment of or companion the free exercise thereof. . . .’ These cases present the issues the context re- state action quiring begin day readings that schools with each from raising questions the Bible. While the basic under slightly permit different factual situations, cases joint light history treatment. First interpreting applying Amendment of our and cases requirements, practices its we hold issue at requiring laws them are unconstitutional under applied Establishment Clause, as to the states through the Fourteenth Amendment. Pennsylvania
“. . . The Commonwealth of by law requires that ‘At . . least ten Holy . verses from page on 437 long *The referred to tlie intensive forth, struggle freedom in America Opin- as set in the Education, Board U.S., v. in Everson supra, ions and the Sunday closing position of laws as set historical forth in same ease. opening at the be shall without read, comment,
Bible day. Any child on each school each attending reading, shall excused such Bible par- upon request reading, of his the written such Bible guardian.’ ent or Participation opening di-
. . exercises, voluntary. . rected statute is . . religion closely
“It true identified is has been Engel history government. our As said we (1962), history of ‘The U.S. Vitale, inseparable history religion. .’. man is from the . devotedly Founding The fact that the believed Fathers rights and that that there was a God the unalienable clearly of man rooted in Him in their were evidenced *36 writings, Mayflower Compact from the to the Constitu background today tion itself. in our This is evidenced through of life the in our of continuance oaths Presidency fice from the final to the Alderman of the supplication, help House me God.’ ‘So Likewise each provides Congress through Chaplain open of the its an ing prayer, and the of declared sessions this Court are open phrase ceremony, in the crier a short the final grace Again, of of are which invokes the God.* there military in our manifestations forces, such where those * may daily every Supreme that We add session of the State Pennsylvania every opened in a and State Court with of ceremony very Com- which ends with “God brief the words save Washington, Court.” this Honorable President and monwealth Cleveland, Wilson, Lincoln, President President President President nearly Eisenhower, Kennedy, Roosevelt, President President many States, every have invoked in one of the United President Star- One of lines speeches of God. of the the aid their of conquer is, must our it is we when cause Spangled “Then Banner ” Our Trust.’ ‘In God Is Since motto just, our and this impressed our coins have been on Trust” God We “In words Allegiance money. Pledge paper imprinted our on indivisible, God, under “One Nation words Flag contains all.” justice liberty with mili our citizens who are under restrictions In worship. wish to
tary engage voluntary service country last official only year an deed, survey church member people indicated that 64 of our have fo Com Department Bureau of S. U. ship, Census, States, Statistical Abstract United merce, religion no profess ed. while less than (83d 1962), 3% there It p. whatever. at 46. can be Id., truly said, life our national fore, today, beginning, a Madi religious reflects in the people words who, are as ... son, ‘earnestly praying, duty bound, Supreme . them Lawgiver guide Universe . . into every measure which may be of his worthy [blessi ng____]’**...
“This freedom worship indispensable was people whose country came from four quarters the earth and brought them religious diversity opinion. Today separate authorities list 83 each with bodies, memberships exist- exceeding 50,000, among our ing as well as innumerable smaller people, . . groups.
“. . . then, most the Court importantly, [and said] “. . . The test may be stated as follows: what are the purpose the primary the enactment? effect of If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as *37 circumscribed the Constitution. That to that say to withstand the strictures of the Establishment Clause there must be secular legislative purpose and a primary that neither advances nor inhibits religion. Ever effect son v. Board Education, supra; McGowan v. Mary 442.” land, supra, page at ** Notwithstanding stronger religious these and even sentiments majority expressed case, the the Everson I believe—as do the justices
dissenting in that Supreme case—that what the religious liberties, about our beliefs and avows its conclusions and often disavow. too decisions
247 difficulty To notwithstanding summarize: the aforesaid I believe all reconciling cases, Everson v. Board 330 and Education, U.S., supra, v. School District Abington Schempp, U.S., supra, 374 require are still law and us to hold that First Act of 1965 violate the Amendatory does Amendment of of the Unit- Fourteenth the Constitution ed States. 1965 Violate
Does Act of Amendatory Constitution of Pennsylvania? Act Amendatory
Plaintiffs contend that and 18, violates Article and Article and I, III, §3, §§7 Article Constitution of X, §2, Pennsylvania.
The
principle
Pennsylvania
is well settled
it
an Act
if
only
will be declared unconstitutional
Constitu
and
palpably
violates
“clearly,
plainly”
Control
For Collins v. Kephart, many 428, 117 years, field. case this leading Atl. considered was injunction bill in for an equity Kephart, Collins separate suits. taxpayers’ five brought was an appropriation Unconstitutional Court declared St. Timo and to Hospital Pittsburgh the Passavant and to the Universi Hospital Duquesne Memorial thy’s Hospital the Dubois Ghost Asso Holy ty Hospital Association Phil Jewish ciation was hospitals worthy of these a very Each adelphia. contended that was not a denomina Each charity. institution. Each hospitals or sectarian tional regard their without faith persons admitted directors composed boards nonsectarian had *38 various and to hospitals denominations conduct take that part its and each proclaimed management, it was a sectarian or denominational institution. The held (a) that Article forbids State §18,* III, aid to all institutions affiliated re particular with a sect or ligious or which are under denomination, domination or control, re influence of governing any sect or ligious ap denomination, therefore, (b) even propriations, had without though they been made question complaint for a period of were 40 years, f/uconstitutional. Chief speak Justice Moschziskeb, for a ing unanimous . Court said : . (pages 434-435) persistence in long a breach of the Constitution neither warrants the course pursued nor legality: gives Kucker v. Oil Sunlight, 230 Pa. etc., 533. Co.,
“It quite is apparent the creation of the so- called local board represents an effort to make simply the Passavant Hospital appear as it were not though denominational ob- institution, thus enable it tain state but aid; that which cannot be directly done permit law will not to be accomplished indirec- for such a tion, when course, tolerated courts, only serves to bring law into contempt. appro- priation under attack, having fact been made to a sectarian and denominational cannot stand institution, in law.” (Pages 436-437) . .
“. While all without persons, distinction race, color or are religion, admitted to defendant hospital, can yet there be no doubt that it is a sectarian institu- tion within the meaning term as used Constitution; therefore the appropriation to it fails 437) law.” (Page “We cannot but see that the arrangement us before more nor less nothing than a plan to evade the Con-
* hereinafter. Quoted *39 conceived, stitution. No doubt the plan honestly was prove in and permissible the belief that it was would subter- but makes it none the less a effective; legal this of the elminates all such fuge. pruning knife law and the devices, situation, bare the realities lays hospital with which we must these the deal; show in control named the under the appropriation act to be of a well much religious known, respected, order, the to money permitted go through state’s cannot be sectarian the of the association to agency hospital this since falls within the class to which institution, character of is forbidden Constitu- recognition tion.” (Pages 439-440) ap-
“. . . adopted Those who the restriction against change must propriating money to sectarian institutions if either an amendment rule, through desired, the present Constitution or nei- one; a new by making ther have nor the courts acting legislature, alone, power to do.” 441) so (Page
“The development po- of social and history in litical life America purpose divorce, shows a set church and state: real under- and this absolutely, like the now before lying explanation provisions one form or con- us, one appear, another, in- stitutions of American commonwealths. The many tent of provisions these and therefore still was, is, the state either or indirect- giving, directly forbid to a sect or ly, any recognition denomination, even in the public charily education-, they fields of serve educational provide effect that, charitable, people or benevolent shall purposes, money under denominational or not be control into sec- put for administration or no hands, tarian distribution, end in matter how view.” worthy (Page 432) the Court held that other words, language, provision intent of this Constitu- meaning worthy objective would plain, and no clear and tion was give taw- it or to or distort to circumvent allowed indirectly by payers’ money directly or cir- evasion or subterfuge a sec- or to or cumvention benefit body, hospital or charitable institution, tarian church, very group, benevolent or even sect denomination, important purposes. educational Kephart times Collins v. has been cited several approval, distin- been overruled or has never guished. League Pa. In Constitutional v. Waters, Defense taxpayer’s bill 162 Atl. which arose
150, equity seeking *40 injunctive in a unani- this Court relief, by Opinion appropriation mous held that a charitable hospital Legislature to a the sectarian was Unconstitu- tional Con- because violated Article of the III, §18, ap- Pennsylvania. quoted stitution of The Court proval excerpts Kephart, from Collins v. 271 su- Pa., pra. following The case is well summarized in the paragraph syllabus: the “Article section III, 18, our state forbids state institutions Constitution, aid to particular affiliated awith sect or denomina- or which are under the or domination tion, control, governing any religious influence of or sect denomina- tion.” spite
In of the Collins and Constitutional Defense League supra, Snyder v. Waters cases, v. Newtown, 147 Conn. 161 A. 2d the 374, 770,* Commonwealth con- * Snyder case, highest the the Court in Connecticut held that transport public expense authorized town to a statute which at non-profit private schools did not children violate the Federal provisions respecting Constitutional or State establishment purported religion, that insofar as it but to make available for the attending non-profit pupils private transportation money schools funds, it was unconstitutional under from school the State derived money inviolably appropriated Constitution, had been encouragement support or common On schools. Supreme States, 299, of the Court United appeal 365 U.S. to the Coun- tends that the recent case of v. Allegheny Schade Inst. Pa. A. 2d sustains ty Dist., 1965. Schade Amendatory Act of constitutionality cor- on its facts. That case distinguishable clearly district, an payments by decided that institution rectly or main- State for the care and by any Agency support, tenance of or dependent delinquent, neglected placed Court in sectarian or denomina- by Juvenile tional homes III, and institutions do not violate Article nor §18, Pennsylvania proc- Constitution the due ess clause the Fourteenth Amendment.
pertinently said
:
(pages 510-512)
plaintiffs’
“It was the
contention
below,
appellant
renews here,
payments
made
the Institution District
named denominational
and sectarian institutions
care
dependent
and maintenance of
board,
neg-
lected children committed thereto
the Juvenile Court
of Allegheny
violated Article
Section
County
III,
the Pennsylvania Constitution which
‘No
provides that
appropriations
shall be
made
education-
charitable,
al or
purposes
benevolent
or
amy person
community
nor to any denominational
and sectarian institution,
corporation
association.’ The appellant
also con-
tends that such
violate
payments
process
the due
clause
*41
of the Fourteenth Amendment of the Federal Constitu-
tion
deprivation
a
by effecting
the liberty guaranteed
the First Amendment
by
through
prohibition
the
re-
‘an
religion.’
establishment of
specting
This question
in
was not raised
the court below and got into the case
solely
being dealt
by
by
dissenting chancellor
upon
entry
the final decree by the court en banc.
the court
opinion
“The
for
based princi-
is
[below]
on the conclusion that
pally
inhibition of Article
18 of the Constitution
Section
is
III,
directed solely
Opinion
following
tbe
down
tbe
banded
“Per
“Tbe
Curiam”:
granted
appeal
is
dismiss
tbe
motion to
is
dismissed
want
question.”
Federal
aof
substantial
legislature
by the
funds
appropriations
against
of State
agency
governmental
such
apply
ato
not
does
unable
arewe
that,
District. With
an Institution
legislature
strange,
if the
agree.
indeed,
It
...
would
corporate
a
politic
exercise
body
creating
or
by
a
may
indirectly
not
it
what
legislative
do
could
function
plain
if a
directly.
that,
for cavil
too
It seems
do
legis-
legislature
do what
can
creature
mere
doing,
prohibited
constitutionally
itself is
lature
Arti-
carefully designed prohibition
Section
readily
result
a
useless. Such
be rendered
III could
cle
Kephart,
Pa.
Collins v.
not to be sanctioned:
is
253 v. Cochran him or her. and maintaining porting [See Board of 281 U.S. Education, 374-375]***----” 512- (pages dictum way then by
The Court
added
such
further
contention
513)
appellant’s
: “The
violation
are
the
District
payments
Institution
by
Amend-
Fourteenth
of the due
clause of the
process
point
this
Inasmuch as
ment is
unmeritorious.
equally
up-
passed
nor there
was not
court below
raised
the
it
consider
on
not
to
required
the
we are
majority,
2dA.
117
here:
v.
“As has been held that Fourteenth used the due clause of the process state against individual as secures Amendment, con- action the guaranteed against as are rights same gressional action the First Amendment (Cantwell 303; Pennsyl- Murdock v. Connecticut, U.S. 296, of Educa- vania, 108; U.S. Everson v. Board Educa- McCollum U.S. v. Board tion, 1, 15; appellant U.S. tion, 203, 211), argues Institution payments District’s denominational ‘es- sectarian defendants tend toward governmental tablishment violative religion’ are and, consequently, of the Fourteenth Amendment. . Supreme . . The appellant’s settled it has, principle, adversely v. Board position. supra, See Everson of Education, where it held that a was State’s use public taw funds for transportation pupils to and sectarian
*** Ooohran, appropriation by the Court held that an money supplying taxation derived from to the of school State objectionable free children is under Four- books for school taking private property private pur- as a Amendment teenth private granted poses furnished for are not the books schools where only children, to or for the but use of the themselves schools private furnished those schools the same and are aUke, or sectarian in character. are not schools *43 promote the establishment did not to schools serve of religion.” approve not that Schade, bnt
We the decision part language ir- and is of its conflicts with which Kep- in Collins reconcilable with the Court’s decision approval. supra, it cites with hart, which Pa., only III, Article we must consider Furthermore, and §§7 but also Article §18, §7, X, and Article III, our dis- or which were not involved Constitution, of cussed in the of must Schade case. All these Articles determining together discussing be considered Amendatory the issues this whether the i.e., case, Act of which amends vio- the Public School Code, any provisions lates or these other of the Constitution Pennsylvania. of Pennsylvania
Article of III, the Constitution §7, of prohibits any Assembly passing the General local special “regulating or law of . . . school dis- affairs granting special any any [or] tricts, . . . individual privilege. or exclusive .. .” provides: Assembly
Article X, “The §1, General provide support shall for the maintenance and of a thorough system public and efficient where- schools, of age in all the children of this Commonwealth above the years may of six be . . .” educated, provides Article X, as §2, follows: money support “Section 2. No raised for public schools appropri- Commonwealth shall be support any ated to or used sectarian school.” for instantly be It will language observed that Pennsylvania Constitution greatly differs from pertinent language of the First Amendment of the Con- stitution United pertinently States, mere- prohibits any ly respecting “law an establishment of religion.” The Constitution Pennsylvania clearly expressly mandates a system school clearly (a) ex Pennsylvania children, prohibits appropriations pressly or use (b) any support money school and sectarian appropriation provides: shall “No in Article III, §18, pur or benevolent educational made for charitable, any person poses any community denomina or nor Considering all institution. * tional sectarian together, should, course we the aforesaid Articles money crystal Com no raised clear that *44 govern by any by any agencies or of its or monwealth any support of for the institution can be used mental special grant privilege any to or used sectarian school, worthy attend no matter how to the children who it, is, or institution and benevolent sectarian school grants the chil and no matter how beneficial these parents or their be. dren would raising money by by borrowing or or The of taxes public transporta- expenditure provide of funds to the Pennsylvania only not all children in but tion school for public children who attend or sectarian schools for operated clearly profit, for the are not violates pro- spirit, meaning the and intent of aforesaid Pennsylvania be- visions we Constitution, and, pro- language thereof. These Constitutional lieve, importance of are such tremendous to all visions people Pennsylvania of that no dilution circumvention, nullify should be allowed to evade or or or distortion mockery Amendatory of them. The 1965 Act make undoubtedly safetywise benefits healthwise and a re- stricted class of school as well children, sectarian as pro- necessary If it both is reasonable and schools. safety health and school and tect children children State’s use or sectarian * grants provisions, exceptions per- certain and With not here tinent. transportation to for their
institutional tax funds legal Consti and and how can be reasonable school, arbitrary discriminatory, to ex not and tutional, private benefits of these from the clude school children safety health and measures?* purpose title of the 1965 Act that its states provide safety “for the welfare health, very yet children of in the Commonwealth”, breath schools same excludes children who attend those operated profit. which are for the so- The fact that Busing called School amendment does law its 1965 provide transportation chil- of all school regardless they dren, attend, the kind of school primary “purpose demonstrates that the real and the protect Act of 1965 was to benefit and effect” safety only the health and sectarian school (as indirectly, schools), well as, their than rather provide protect safety the health and all the Pennsylvania. school children of express
To init other if this 1965 Act words, is, proponents really protection its for the contend, safety—«oí only— health and all school children but *45 of sectarian providing public school children, funds protection for the safety spe- the health and of this parochial cial class of school children, i.e., or sectarian school then arbitrary children, and unreasonable, * We further note that under Code, §1362 of the Public School transportation pupils public resident free and sectarian may provided schools be out of the district, funds of the school but transportation (1) public such shall be over established school bus half, than (2) and not nearer a school a routes mile and a and by using may conveyances, private furnished either school con- railways veyances, or or electric other common carriers. What may happen safety happens to the and or health of all those school (1) (a) far from live an who established bus sta- route (b) mile and a half tion, a within or sectarian (2) attend; they private and those children who attend a school? pat- and such an
invidiously, discriminatory, obviously ent device to circumvent and the Constitution nullify toas be clearly and doubt beyond any Unconstitutional.
Legislative Classification We may add that there is another barrier majority does not even discuss. classifica- Legislative tions are permitted in Constitu- Pennsylvania and are provided tional, arbi- they are not unreasonable trary and have a reasonable distinctions basis and classifications they make. We all agree wisdom or lack of wisdom of an matter for Act is a Legislature and not for the classifica- Courts, tions and distinctions will they be sustained provided are “reasonable and founded distinc- upon a genuine tion.”
The law is well expressed in Kurtz v. Pittsburgh,
346 Pa.
31 A.
362,
2d
where the
257,
Court held uncon
stitutional,
being
plain contravention of Article
III,
§7,
Act of June
as amended.
That Act
provided for payment
dependent
wives of
employees
the armed forces of
the United States
specified
portion of their
24-
salary.
a lengthy
page
the Court
Opinion,
analyzed and reviewed many
of the cases
involving
question of
a violation
Article
III,
§7,
Pennsylvania
Constitution,*
said
pertinently
(pp. 367,
:
368, 369) “Class legislation
has frequently been declared void by this
Court,
what
is** class legislation has been defined and illus
trated in
long
line
decisions.
In Penna. Co. for
Insurances on Lives and Granting Annuities
Ap-
et al.,
*
analysis
For a more recent
many
and review of
decisions
Supreme
this Court and of the
States,
Court of the United
see the
*46
Bargain
dissenting Opinion
City
Dilworth,
U.S.A. v.
258 et 329 Pa. Prothonotary 534,
pellants, Scott, al., this Court in an Mr. Justice Opinion by 115, A. Linn Rapid quoted what said in et Laplacca was ux. v. Phila. Transit ‘The 265 Pa. 108 A. as follows: Co., 304, 612, basis must be and proper reasonable for classification upon dis- real, merely artificial, founded tinction between the gen- members the class and the eral and based “a from public, upon necessity springing manifest those peculiarities, clearly distinguishing one from class each of the other and impera- classes, tively each demanding legislation class, separately, that would be useless and detrimental to the others” ’.
. . In Ayars’ Pa. 16 A. Jus Appeal, 266, tice Sterrett said: ‘The underlying principle of all cases is that classification ... unconsti essentially unless a tutional, necessity therefor necessity exists [a springing manifest distin peculiarities, clearly guishing those one class from each of other classes and imperatively demanding legislation for each class separately, would be useless and detrimental to the . . .’ This principle applied was in Com others] monwealth ex rel. Brown v. Gumbert et 256 Pa. al., 100 A. [534], 990. Although the legislation under attack there was we ‘humanitarian’, said that ‘posi tive constitutional requirement’ cannot be disregarded because of an act’s ‘beneficent aim.’
“. . . arbitrary selection can never justified it calling classification. .”.
See also Davis v. Sulcowe, Dauphin 72 (1963), wherein it was held that there was no basis for distin- between guishing nonprofit nursing homes and proprie- tary nursing homes for minimum wage requirement purposes.
Because the 1965 Amendatory Act has such an im- and beneficial portant purpose and objective, is with I I feel great regret must dissent and hold that Act of Amendatory its arbitrary and un- *47 do and reasonable distinctions classifications—wbicb protection imperatively safety and health demand useless for would be school children which sectarian clearly private and school children—is detrimental to plainly and unconstitutional.
Dissenting Opinion Me. Justice Cohen : question my opinion, the The act both violates, Pennsylvania Federal Constitu- Constitution and the incomplete- vagueness and further for and tion, is void upon subterfuge premised of ness. the Moreover, is present theory, the “child benefit” comes and the case before us a record insufficient to the substantiate arguments support made in of the statute. Pennsylvania §§1
Article 2 of X, Constitu- provide: system. Ҥ1. tion General Public school provide sup- Assembly shall the maintenance and port public thorough system of a of efficient all wherein the children of this Commonwealth schools, age years may above the of six be and shall educated, appropriate year at least one million dollars each purpose. moneys
“§2. Diversion of school to sectarian schools. money support public No raised for the schools appropriated of the Commonwealth shall to used support any for the sectarian school.” legislature Section is a mandate to maintain support system a schools. Section 2 ais prohibition against the diversion of school tax support moneys or for the of sectarian schools. As society I view the matter, which tends to increase schools and erect the size of them ever further from provision transporta- students, the homes integral school has tion to and become an func- system educational tion of the a direct aid there- Accordingly, system where to. is sectarian, supported provision transportation of tax for of- place to a pilgrimage affording daily
purpose a sec- appropriation is an training fering religious Article 10, §2 in violation tarian institution Commonwealth. of this Constitution recog- I argument, Amendment First Regarding Board of Everson effect apparent binding nize believe I However, 1 (1947). 330 U.S. Education, *48 Supreme recent statements more that certain and force diminished to a extent great Court have ex Illinois In Everson. enjoyed by impact formerly McCollum, 203 U.S. 333 Education, v. Board rel. arrange- time” held that a “released the Court (1948), to receive permitted whereby pupils ment were regular during buildings in school public instruction Amendment in of the First hours was violation school in Torcaso state; of church and separation principle that held the Court v. Watkins, (1961), 367 U.S. that Constitution of the Maryland the requirement in the existence declare a belief office holder must every invasion as an the First Amendment of God violated in religion; freedom of belief and of the individual’s held Court v. Vitale, U.S. Engel (1962), encourage school public system the use of the in- was prayer of a brief non-denominational recitation in Abing- clause; consistent with the establishment 203 (1963), ton School District 374 U.S. Schempp, read- held that school exercises requiring the Court Bible or the violated Prayer verses Lord’s ing fact Especially significant establishment clause. is of Everson is that one the critics Justice Douglas, in majority justices the five Everson among who was stated that' Engel concurring opinion but who the decision in in- he reconsidered it Everson, as was the First Amendment and that the dis- consistent Rutledge of Justice opinion senting Everson was I like should the United law. States Supreme better to decide this case so that finally Court re- they may I would Accordingly, Everson doctrine. consider that a instructions case with a master each appoint Court both this upon made which be record meaning- more might Supreme United States reach a decision. fully inasmuch as void question act in is further busing The statute authorizes incomplete. vague requires routes” and school bus
“over established to and transported nonpublic pupils school con- or most on routes nearest point points “the such at- pupils such [nonpublic] to the venient apparently realizing Attorney General, tend.” The imple- too to be vague enacted the statute remained as Superintend- in a Acting outlined letter to the mented, im- for the ent of Public guidelines Instruction several de- act. In it General plementation the Attorney from es- deviations clared that a school board make may re-routes, routes and may tablished make new routes, non- routes in order accommodate reestablish may part defined he addition, school children. distance *49 school bus route public any established required a school bus is to travel beyond complete trip place in order to its or its reach General assumed storage. Attorney effect, rather of the legislature the role of an overseer version fit to write own interpret than saw his act, As- passed because the statute General by the simply incomplete and unworkable. Neither sembly was nor the legislation General Courts write Attorney may has for the General and when that Assembly, body certain in an requirements to include essential failed neither the executive nor the may enactment, judiciary interpretation re- add the guise missing under Altieri Allentown and Em- quirements. Officers’ Retirement Board, 368 Pa. 81 A. 2d ployees’ York Akins v. ; Employees’ Retire- (1951) Officers’ Pa. A. 2d 883 ment Board, (1951); Note, Rev. The 109 TJ. Pa. L. Void-for-Vagueness Doctrine, 67 (1960). I (or on the record lack of before
Finally, one) us, am unable to that be sus- conclude this statute may is tained of the “child It theory. virtue benefit” by obvious that theory subterfuge merely supporters question. which its the enactment justify For one transporta- the act not thing, provide does free tion for pupils. all It excludes from the enjoyment its benefits oper- attend schools private students who ated for I profit. can no see basis omission children if these the statute truly was enacted for safety Common- welfare children of our wealth. The reason is because an ex- clear, however, amination the statute indicates that was safety predominant motive for The its passage. act, will passed, actually marease the danger who were formerly transported from their homes to the private or parochial schools in operated buses. privately provides The act for transportation pupils such and from on points established school “near- bus routes est most convenient to the [nonpublic] . .” school. . This statute completely ignores the hazards additional imperil these and cannot be children, sustained reference to a makeshift “child welfare” theory. only way provision this can serve the truly welfare the children of the Commonwealth is that it be imple- mented by to the providing nonpublic school children the same service accorded to those that attend school. That means them to taking and bringing them their schools and by so doing, clearly violating Pennsylvania Federal Constitutions. As I have transportation bus indicated, has become an integral *50 process part education and any improvement transportation pupils must be considered as to the schools. an aid fact, statute in question, the provisions in addition herein pro- considered, Tides free transportation pupils tours “connected pursuits with the educational pupils.” passed act was an aid education and that all. grants Since it tax supported benefits to sectarian educational institutions is unconstitu- tional. That is all there is to it.
I dissent.
Purnell Estate. C. J., Before 1966. Bell, September Argued JJ. Roberts, O’Brien Eagen, Jones, Musmanno,