Squires v. Inhabitants of City of Augusta

Squires, et Alden al. W. vs. City Inhabitants of Augusta, Lloyd Carey, Mayor,

H. Dunn, Leo F.

Treasurer Opinion, May 25,

Kennebec. 1959.

Goodspeed Goodspeed, & Pierce, A.

Charles plaintiffs. Sanborn, Sanborn & for Bourget, J. Claude defendants.

Sidney Wernick, W. J., Sitting: C. Sullivan, Williamson, Tapley, Webber, JJ. Dubord, Siddall, brought by appeal. equity A J. On bill was

Tapley, Augusta against City inhabitants thirteen taxable mayor city and and treasurer. of that the inhabitants enjoin plaintiffs to the defendants their bill seek carrying provisions into ordinance effect from Augusta City passed by on and order Council June pupils relating transportation and non- to to from plaintiffs public seek to have this ordi- schools. further illegal, invalid, appropriation and order decreed as nance hearing bill, on the answer void and of no effect. After replication, justice and and below dismissed bill appealed. plaintiffs seasonably from this dismissal litigation upon and The ordinance order which this based reads as follows:

“WHEREAS, residing City in the of Au- children pursuant gusta attending the schools compliance compulsory with the school- Maine, and who attendance laws of the State rendering reside at distances from the schools afforded, conveyance presently necessary, are public expense, conveyance at and motor vehicle public schools; conveyance provided WHEREAS such comfort, safety and welfare conservation transported, children thus conveyance is not afforded WHEREAS such Augusta residing City children who attending than under schools other compulsory compliance and in with the school- of Maine and who attendance laws the State at they the schools reside unreasonable distances from attend; THEREFORE, attend- in order facilitate NOW compulsory pursuant ance at attendance laws school- Maine, of of such the State conveyance now children for whom such provided while protect children and to assist and such highway the in they are on order to attend compulsory school-attendance the school under Maine, of of the law State BY THE CITY of BE IT ORDAINED COUNCIL Augusta, City follows: the of as City Augusta ORDERED, (a) of shall That The conveyance by motor vehicle make available Augusta (1) pupil residing is a any in who child attending non-public grade elementary of pursuant ‘parochial’ school) (including a so-called compulsory conformity school- the and in Maine, (2) of of laws the State attendance mile from the than one said more resides who school child attends. which such provided conveyance so as shall be (b) Such health, safety and welfare of the chil- the conserve dren transported. Augusta City is author- Mayor of (c) of The period year, one of contracts to make

ized employ persons to further and to other and such take such necessary may action to effectuate as herein contained. the matters appropriated (d) There herewith from the Augusta contingent City fund of the sum of purposes expended and mat- to be $250.00 during the provided remainder herein ters year, 1957.” Augusta pertinent portion City Charter The reads: publish acts, may laws

“.....and ordain and regulations not inconsistent with Consti- state, as shall be needful and laws of this tution politic;-----.” body good order of said L., Chap. 1, P. 1919. Sec. agreed provided aspect of the case is factual appears the facts, which there in addition to

statement of Augusta. It Superintendent testimony of Schools pa- private happens here involved schools so rochial schools. explains great agreed detail facts statement parochial supervision operation schools knowledge pa-

Augusta. public It is a matter operated by the Roman are controlled rochial schools private They are in effect schools as dis- Church. Catholic tinguished and in the view which we schools category other take of case are within same this parochial meet in the These schools State. compulsory pupils education and the the standards lawfully of attendance at attend them lieu schools. (1) ap- appellants that contend the ordinance and illegal propriation order of and June 1957 is is au- by either the of the thorized statutes State Maine or the Augusta Charter; City (2) ordinance and order is Maine; (3) in violation of the of the Constitution State and order in violation the Constitu- that the ordinance appellees, contention of tion of United States. The purpose briefly stated, of the that the of enactment ordi- provide transportation private and nance order was health, safety school children in order to conserve their welfare, City Augusta City for the that the Council authority had enact the ordinance order as an exer- police power. cise of its single legal

This case itself into a resolves basic issue. authority by Did the have council to enact the ordinance police power? reason of agreed parties Legislature

It is between the that the has not, given statute, City Augusta either charter or express authority pass any pro- terms the ordinance viding transportation pupils private to or from schools. and,

The State controls the to a substantial degree, supervision maintains private control and over the compels by prоviding schools of the State. It education (Chap. 41, S., 1954, amended) Sec. every E. child between the 7th and 15th anniversaries of his birth shall public day attend some satisfy school. A child this re- quirement if equivalent he obtains instruction for a like period of time in a school in which the course and study method of approved by designated have been edu- cational authorities. Maine, imposes Constitution of duty Art. VIII

upon Legislature promote the cause of education. This, effect, is in the nature of constitutional mandate. In 1876 the then members of the Law Court of Maine had give opinion occasion relating authority responsibility Legislature subject on the matter of Opinion schools and education. This the Justices is re- pertinent corded 68 Me. 582. quotation A from the opinion following is in language: gen- constitution, “In the it is declared that a pres- eral diffusion of education is essential the people. By very ervation the liberties of the language, ‘general seem that it would the diffusion regarded especially a was to of education’ ‘benefit’to the as people. legislature so, If then the power’ subject over the matter schools has ‘full to make all in and of education reasonable laws people for the thereto the ‘benefit

reference this state.’ ” (Emphasis ours.) support sovereign the fact that the has main- In further through years and education control of schools tained opinion: justices following by the in their is the statement gov- “Accordingly, from the first institution of present day, general control ernment schools, determination of what shall be and the support, provision towns suitable has phasis ours.) legislative (Em- enactment.” been fixed statutory important and advisable review laws It is thought purpose and in of de- State, mind of the part termining on the of the State to of intention evidence public general education, to both control of as maintain private system legislation affecting of edu- All schools. Chap. compiled S., 1954, R. in as in the State is cation chapter “Department of Educa- is entitled amended. portions chapter propose of this tion.” to cite such We demonstrating pertinent (Chap. 41) in control through legis- supervision maintains State system. educational lative over the State’s enactments Regarding Education, the duties Commissioner VII, Sec. as amended: Sub-sec. taught prescribe To the studies to be in “VII. private approved public schools schools purposes, reserving tuition to su- attendance

perintending committees, trustees other or private charge schools of such officers right prescribe studies, and the additional study prescribed by course shall be followed the commissioner and in all all schools approved by the said commissioner provided, purposes; for attendance or tuition how- ever, sioner of upon approval by the the said commis- arranged by superin- any course by tending town, or any school committee of or school, any private said trustees other officers of shall for town course or be authorized course said private school; provided further, the basic language public schools, of in and instruction all English language; pro- private, vided government, and shall be further, history and that American civil including of the the constitution independence, declaration of United and the States privileges importance voting and re- of and the sponsibilities taught citizenship, all in be shall secondary grades, elementary both and schools history 'private, and and that American graduation government required for civil shall be pri- elementary schools, public and from all both Nothing in be construed vate. prohibit this section shall any teaching elementary schools in provided that language as It is further such. geography and indus- and the natural course trial taught at least shall be Maine resources 12, inclusive, all school grade from 7 to one (Emphasis private.” systems, both ours.) functions, Pertaining (Sec. 14): we find school other superintendent of schools in each “----The town conveyance procure elementary all shall residing town, part pupils in his or the school whole distance, nearest suit- school, for number of weeks able year, in each when are maintained such schools a distance from the pupils at such said reside superintending judgment of the in the school as school committee conveyance render shall eases, conveyance provided necessary. shall conserve all so In comfort, safety and welfare of conveyed charge the children and shall be in a responsible driver shall have who control over the conveyed. conduct the children Contracts for conveyance may period said be made for a not to years. Provided, however, super- exceed 3 that the intending superintendent may school committee authorize pay any the board of pupil pupils place or at a near suitable estab- conveyance providing lished instead of pupil pupils, judgment said when in their may equal expense by at an be done or less than conveyance.----.” (Emрhasis ours.) 43, as amended: Sec. place temporary

“Where the distance from the residence to the transportation more than 2 miles school is super- is deemed advisable intending the to the commissioner with such other information directors, school committee or school superintendent report of schools shall the same required and if so directed the com- procure transportation missioner shall child or children able, for such or, transportation if is inadvis- (Emphasis thereof;---.” in board lieu ours.) requires x-ray chest Sec. 55: section examinations This schools, superintendents supervisors, teachers, all of for nurses, janitors, persons school bus drivers and em- school ployed preparation provision in the of school lunches. This specifically private applies public and to both schools. amended, compulsory

Sec. as education section requiring attendance school of children between 7 and 15 years age and under some circumstances between the ages of 15 and 17. Under this section a child com- pelled provided to attend a school that: instruction, equivalent

“---the child obtains for period time, like in school in which study the course of and methods of instruction approved by commissioner, any have been inor

159 arranged by superintending other manner directors with the school committee or the school not un- approval shall commissioner. Children private school at a credited with attendance be til a certificate names, showing residence signed person school, by the attendance at such persons having charge, filed shall be such school of the administrative unit with the school officials (Emphasis ours.) children reside.” said part amended, trans- itself in concerns Sec. schools, pupils high portation while free Sec. by community transportation provided school to be treats of relating provisions to the edu- of Sec. committees. The provides part unorganized territory children in cation of transportation elementary pupils.” “board reading provisions (Emphasis ours.) of the A careful Legislature Chap. estab- has 41 will demonstrate growth pattern of the lished a definite for the creation system and inter- State in all its varied educational of the twining aspects. pertaining education, study

From we our laws Legislature are convinced that the which enacted the vari- regu- provisions municipality ous intended that no should any subjects late ordinance or order which would affect general permitted or influеnce education unless to do so delegation express power. by an To determine otherwise disregard Legislature would be to the clear intent of the part any municipality invite interference on the responsibility within the with the State’s State and con- “ duty power’ subject exert stitutional ‘full over the matter schools and of education-----.” policy

The State educational cannot and must not be governing body. interferred with subordinate Mc- Quillin-Municipal Corporations, Vol. Sec. 15.21:

“---Nor, general grant power, a under can a mu- nicipal corporation adopt ‘which ordinances in- policy, repugnant

fringe spirit, to the are the or legislation.’ It fol- declared in its of the as state legis- through expressed that if state has lows lation a subject, policy a public with reference to respect to municipality cannot ordain a subject qualifica- contrary to, or in to an effect unless power policy established of, so tion grant positive, specific, there is lawful municipality other- ordain by state to the ours.) (Emphasis wise.” conveyance Legislature to make the fit has seen The part pro- component pupils as much books, employment furnishing teach- gram of text as taught, and subjects construction ers, prescribing to be buildings all other activities and maintenance of school program. complete compose a educational politic only City Augusta body and has given Legislature, authority by to it as act which is power by of a town its charter or statute. evidenced pass rules, city appropriate money and and orders provisions by-laws in Maine was first established Chap. 6 reads Sec. 6 of the Laws of Maine 1821. Sec. as follows: any enacted,

“Be it That citizens further meeting town, qualified aforesaid, at the annual as officers, for the of town or at other choice meeting, regularly warned, may grant and town vote such judge money they as sum or sums of shall necessary settlement, maintenance poor, ministry, schools, support and and other arising necessary charges, within the same property upon polls town, within also the provided; and assessed same, they by law and as agree upon empowered and hereby to make bye-laws, necessary rules, for the orders ordering prudential managing directing, affairs they judge town, con- shall most of such good peace, there- welfare order ducive penalties for the observance of of; to annex 161 offence, exceeding dollars for one the same not to enure to such uses as five they direct: shall therein general repugnant Provided, They the be not to laws State.” of this significant been no substantial

It to note there has authority departure over maintenance from the State’s general years. The revision of the and cities 137 towns S., Chap. (R. relating municipalities to enacted 1957 laws 90A, L., Chap. than 1957, 405) P. did no more to consoli- municipalities. codify powers date and the and duties of subsequent the This did not effective until statute become in this case. We eflective date of the ordinance concerned noting legislation purpose mention for the this 1957 provisions therein, expressed there are contained either no giving City Augusta pass implied, authority the order, legislation and effect ordinance had the been in passage. municipalities subject at the time of are still sovereign authority only to the and of the have those powers delegated Legislature. specifically by which are Spaulding Peabody, See 129. In v. 153 Mass. v. Frankfort Co., 4, page Lumber 128 on the court Me. said: “ municipal corporation ‘A of sov- has no element State, ereignty. having agency It mere local of the is a clearly powers no other than as are such law-making granted unmistakably by and power.’ ” Alley Edgecomb, 446; 53 Burkett v. Inhabitants Me. See Young, al., v. et 135 Me. 459. Lunn, al., City Auburn, et In the et case of al. v. authority considering power and Me. court City spoke in this manner: Council important now discover the inten- “We think it Legis- Legislature, intent tion lature is the Legislature law.---Further, if upon city council had intended to confer done power claims, certainly have would it now express grant by not so inference ours.) general (Emphasis terms.” given City authority Au- the Charter language: gusta “and ordinances contains this enact regulations publish act, laws ordain State, this laws inconsistent with constitution politic.” body good of order as be needful said shall by any meaning or force of stat- of these the words Within municipalities authority applicable must be found to ute pass City and order. There to the ordinance for Council language express authority and of the Charter no is that the inference can be drawn therefrom no reasonable Legislature City power granted to enact an Council conveyance providing for of children to ordinance school specific right private schools, nor do the confer a statutes negatives do so. than affirms the to The Charter rather City only right may provides it that the ordain because and are not with the of the acts as inconsistent “laws laws State.” appropriation The order calls for the of be $250.00 contingent

paid purpose appro- of out fund. The priation conveyance private pupils is to finance of Although appropriation schools. is to taken from be contingent funds, and not it fund nevertheless is de- expended, legally taxation, rived be in order to by appropriation. be made available lawful must Public spent except purposes by cannot for funds be authorized by statutory law. This come about charter or author- authority strictly ization but the must be construed. “The charges,’ necessary words ‘other new and distinct town do not constitute a grant power of indefinite and unlimited money purpose whatsoever, to raise at the will and pleasure majority. They only of a embrace all incidental expenses arising directly legiti- indirectly in or the due and powers mate exercise of various conferred statute.” Opinion Justices, 52 Me. 595. See v. The Inhabi- Gale of Deering, 174; tants South Berwick, 51 Me. Westbrook v. of 63 Me. 231. legal rights municipalities of are defined well as scope appropriating authority raising, matters spending public powers authority funds. Their

determined within the of their or structure Charters enabling It spe- acts. noted that the statutes have cifically provided expenditures public money by for the generally. provisions towns and cities There are numerous providing financing many activities, for the educational among transportation pupils in the enabling schools. There is nowhere to be found in the stat- Augusta City any authority, utes or in the Charter of the express implied, appropriate any for the Council to sums conveyance for the pupils schools.

Counsel the defendants cite the Everson case of v. Board Education, applicable 330 U. S. to the facts circumstances this The Everson case. case had its origin in the State Jersey of New under a statute authoriz- ing local school to districts make rules and for contracts transportation the of children schools, to and from includ- ing transportation the school children to and of from public schools other than schools, excepting those schools operated profit which are part. for in whole or in The stat- provides ute further any that when school district furnishes transportation public for any school point children from in an established school point route to other on such estab- route, transportation lished school supplied shall be residing the school children the district other than children, excepting school private those children who attend operated profit. schools appellee (Board for The of Educa- Township tion of the Ewing), acting pursuance of statute, parents authorized reimbursement money paid out them transportation for bus pri- their children to money expended portion was for this A

vate schools. pa- pupils transportation to the Catholic payment of appellant contended statute The rochial schools. pursuant passed to it violated both resolution and the Constitutions, thereby presenting as the Federal State constitutionality resolu- and the of the statute issue States, a divided Supreme of the United Court tion. were constitu- opinion, that the and resolution found statute distinguish from the case now Everson case tional. We Everson case the State of New In the consideration. under authorizing specifically enabling Jersey enacted an statute provide trans- of school the Board of Education districts attending pub- children, portation all both those for oper- (except private private schools lic and schools those constitutionality profit). ated for issue was case, not, It in the instant statute the resolution. was passed providing transportation was that the resolution statutory question in- This not without authorization. was Everson in the case. volved 434, Henry, Ky., S.

The case of Nichols v. 191 W. appellees by the (2nd) 168 A. L. R. also cited enabling Everson is based case on an act and thus as is distinguishable at case bar. properly enabling act, that a worded We satisfied authorizing municipalities expend for the trans- funds operated portation of children to Legislature, profit, were in fact to enacted if one saying requirements. would meet constitutional In so we recognize Supreme the decision of the Court of the States in Everson the law the land and that the United provisions relating the ex- the Maine Constitution penditure public purposes and to the monies separation state, stringent carry pro- no more church hibitions than the First Fourteenth Amendments to cannot, however, pass upon the Federal Constitution. We constitutionality never statute thus far has Legislature. already noted, by been enacted As we have any provision find charter searched vain to of statute or authorizing Augusta City appropriate funds transportation of children to schools. bar,

In our view of case at we do not reach the issue constitutionality the ordinance and de- order. The Augusta is, City cisive issue here did the Council of have authority Legislature to enact the ordinance and never, by order? We hold that the State of Maine has en- abling legislation Augusta City or the terms of the Charter, by express grant implication, empowered or City authorized to enact Council ordinance order. appellees

It is contended the ordinance and passed by City Augusta order as Council of was a proper police power. question exercise of There is no but City Augusta that the always authority has and has had police power. to exercise ordinary “The city form aof granting authority charter to enact ordinances not incon- sistent with the Constitution and laws of the State is a delegation authority police power.” to exercise the Opinion Justices, recognize 124 Me. 508. We principles proper police sound power use of and the necessity mean, however, for it. This “police does power” assigned when authority as a reason or for the en- actment give of an ordinance is sufficient to validation to the act. police When an enactment founded power, on legislation the resultant must stand the test as to whether it proper is a power McQuillin- exercise of such or not. Municipal Corporations, Yol. Sec. 24.04: ‘police power’ “The term in a more limited

sense, power; power governmental is not conceived to be all embrace, ‍​​‌​‌‌​​​​‌​‌​​​​​‌‌​​​​​‌​​‌​‌‌‌​‌‌‌‌‌​‌‌​‌‌​​​‍example, does not power of eminent domain or the of taxa- 166 public appropriation revenue and

tion of (Emphasis ours.) funds,----.” police power however, cannot, subscribe to the use of We Legis- defeat the intent of the end result is to when Legislature it that when It not conceivable lature. is Augusta delegated police power City of intended to permit passage authority to ordi- it be used as pupils private providing conveyance of to nance for the purpose. City for that and to use funds power accomplish by police attempting is to what Council enabling any or to do its Charter is not authorized transport pupils Legislature, namely, act McQuillin-Municipal Corporations, 6, Yol. Sec. schools. 24.46: power subject,

“Municipal police course, is limitations, to including, course, applicable those power generally. police exercise Its must be general of the State consistent with the laws police power made a been In this instance use has derogation policy repugnant and in of the established plan general promotion for the scheme State McQuillin-Municipal Corporations, 5, Vol. of education. 15.21: Sec. grant “---Nor, general power, a can a under corporation municipal adopt ordinances ‘which in- repugnant рolicy, fringe spirit, or- are legislation.’ It fol- declared in its of the state as through legis- expressed that if the state has lows subject, public policy with reference to a lation respect municipality cannot ordain in to that contrary to, qualification

subject or in to an effect of, public policy unless there so established grant power positive, by the specific, lawful municipality otherwise.” to ordain state to (Emphasis ours.) City Chicago, In Dairies v. case of Fieldcrest page say: (2nd) F. on had court this to any “The ordi- authorities are uniform nance which statute or conflicts Legislature policy adopted by The rule is is invalid. the State McQuillin aptly Munici- stated in 2 on Corporations, Municipal corporation pal ‘A 572: prohibit cannot, special authority, what without Nor, general permits. policy on of a the the other statute permit hand, that can an ordinance policy Consequently forbids. which the State’s under a grant municipal general power, cor- a of infringe poration adopt “which cannot ordinances repugnant policy the spirit, of or the legislation.” It thus state declared in its as expressed through the has that state if follows public sub- legislation to a policy with reference respect municipality ject, ordain in cannot contrary qualifica- subject to, or to an in that effect ” public policy so established.---.’ tion the of ours.) (Emphasis Legislature present been time the has Since 1821 to authority delegation of to towns and cautious its definite general always maintained con- The and cities. State has education, phases, and in all when use trol of purposes or other and cities for school funds towns specific and permitted, been has has been authorization uncertainty no as to intent. There has well defined. been Legislature the revision of laws Had which enacted any Legislature pre- municipalities relating pass ceding it, municipalities be authorized to intended transportation pupils providing ordinances schools, in clear and it would have said so unmistakable language. into the an intent It not for us to read statutes obviously not there. which is Augusta City City was without Council pro-

legislative authority ordinance and order to enact the viding conveyance pupils grades elementary for the expenditure

attending non-public schools and purpose would be unlawful. funds this to the attention of terms It has come court mayor city at in office office of the treasurer litigation have termi- time of commencement of this fully argued. The nated. been briefed and The case has give court below to rea- should be remanded case join appellants to opportunity for the move to sonable Augusta present city present mayor treasurer defendant, thereupon, being parties such motion granted, be entered accordance with this decree opinion. be, entry will

Appeal sustained. below Remanded the court proceedings in ac- for further opinion. with this cordance Opinion. J., Dubord, Dissenting J. Sullivan, . . pro justice appeal decree of a

This is an from forma authority dismissing equity of bill instituted under plaintiff (1954), 4, paragraph XIII, R. c. S. § Augusta, mayor taxpayers against City and its of treasurer. legislative City

On A. D. June 1957 the Council Augusta following body City had ordi- enacted the nance and order: “WHEREAS, residing City in the of Au- children

gusta to and in public pursuant attending schools compliance compulsory with the school- Maine, and who re- attendance of the State of laws rendering their side at distances from the schools afforded, presently conveyance necessary, are public expense, conveyance by motor vehicle to and at schools; conveyance provided for the “WHEREAS such comfort, safety and welfare of conservation transported and the children thus conveyance not afforded “WHEREAS such Augusta City residing who are in the children attending and in attendance than schools under other compulsory compliance school- Maine and who re- laws State from the schools distances at side unreasonable attend; they THEREFORE, at- to facilitate in order “NOW compulsory pursuant at school tendance Maine, by the State laws of school-attendance conveyance is not such for whom children such now protect chil- assist and provided and to highway in order to they are on dren while compulsory school- under attend Maine, State law attendance COUNCIL BY THE CITY IT ORDAINED “BE of the Augusta, follows: City 170 ORDERED, City Augusta (a) That of shall conveyance

make available motor vehicle to Augusta residing (1) pupil in child is a who grade elementary attending non-public of (including “parochial” school) pur- a so-called conformity compulsory suant school-attendance and to with the Maine, laws of the State of (2) than mile resides more one from the who said school which such child attends. “ provided (b) conveyance shall be so Such as health, safety and welfare of the chil- conserve transported. dren Augusta Mayor City “(c) of of au- period make one thorized to year, contracts for employ persons take suсh necessary and further action as other effectuate herein the matters contained. appropriated from the “(d) is herewith There ' Augusta City contingent sum of fund expended purposes and mat- to be $250.00 during the remainder of the provided herein ters year, 1957.” plaintiffs nullify the equity the seek to By the bill apply complaining can fact such ordinance that ordinance parochial existing conducted under schools only to two Church, City en- auspices of Roman Catholic charter, competency con- delegated statute joys no vio- adopt the the ordinance measure stitution he Maine and Constitution the Constitution lates United States. agreed pleadings, decree, and consists

The record superintendent testimony of the and the facts statement Augusta. parochial schools are compositely having pupils, grade elementary units respective more a mile or schools. reside whom religion taught formally morality are Such scholars concededly functioning required courses. Such schools statutory require- compliance with the educational in full graduates accepted of the State and their ments plenary approbation. high There are no school Augusta. private in schools other sitting judicial propriety justice that in he concluded

The validity precedent and the ordi- honor sustain the should legality. upon presumptive nance the basis Legislature by appellants contend that the constitu- delegate possessed authority to the tional limitation no Augusta promulgate City an the sanction to such ordi- Legislature nance, had never affected to that the bestow power by upon City by charter, the either statute or enabling that for act of want some warranted the Legislature City appellants ultra vires. has acted argue transportation integrated an that school ‘bus school by municipal only activity and charter the board of edu- expenditure moneys. cation can effect the school They argue may regulated by that sovereign by not but subsidized it and that funds appropriated purposes. not be for sectarian They that act assert violates the Constitution of Maine in that religious illegally prefers provides one denomination and appropriation private purpose. They protest an for a that against the ordinance offends the Constitution of the United adopt reasoning and that States this court should of the minority justices contained in a decision of the United Supreme give States in Court order to heed to the censure appellants. appro- In far as this ordinance so makes dedicates priation transportation non-governmental for the cannot, would, seriously children this court if it entertain protestations appellants from the that the enactment therefore violates the National Constitution. There is un- impeachable auhority contrary the decision of the Supreme United States in the case Court of Everson v. Board Education (1947), appel- 1. In 330 U. S. effect the acknowledge reality that insurmountable

lants but, nevertheless, their brief persist split one the decision was a conforming urge with the ma- we refrain from highest jority of in the land. The tradition and court clearly respectful duty have court been settled: this reasoning by repeat which this “We shall Supreme conclusion is sustained Court say the full, factory It that it is United States. is sufficient satisfactory. think But whether satis- and we acquiesced not, it must be question courts, fed- the arises under the State Supreme duty constitution, it the the eral and is of it, and to answer of the States Court United - -” upon courts. is conclusive the State answer supplied.) (Emphasis (1881), 498, 496. Furbush Me. State 72 v. question, have and if we could federal “This is a any it, the law bound to we are doubt about follow by last resort.” court as decided the of federal (Emphasis supplied.) Burger Whitney (1886), 287, 295. Me. v. 78 by the U. S. Su- seems, decisions of it recent “But agreeing (by preme Court, this which Court bound)----” not, is (Emphasis supplied.) Eastport (1939), Corp. Realty 136 v. Waterville 309, 315. Me. Supreme the Court decision of “----The interpreta- upon question United States application the commerce tion and clause_ up- binding is conclusive Federal Constitution supplied.) (Emphasis court.----” on this (1942), Higgins Me. Brothers Co. v. Carr 264, 271. compulsory attendance the Cognizant school of universal supra, Education, renders un- Board Everson v. case appellants arguments ‘bus availing school that these activity, transportation school an inherent nature publicly sup- transportation private pupils when subsidy private ported and that schools is a pur- thereby applied private when to funds so utilized religion pose preference another and before to to of one purpose. a sectarian Supreme

The United Court said: States only P. 5. “The statute contention here is state they resolution, insofar as author- parents children attend- ized to reimbursement ing parochial schools, Federal Constitu- violate respects, extent to some tion in these two take overlap. They the State to First. authorize property of some and be- taxation pri- others, upon their own to used stow alleged, This, it is due purposes. violates vate process Amendment. of the Fourteenth clause in- and the forced The Statute resolution Second. support pay help main- taxes habitants to to, and which dedicated which are tain schools teach, al- regularly leged Faith. This the Catholic power support church a use of state to be prohibition contrary of the First Amendment Fourteenth which the Amendment made applicable to the states.” legislation argue that much too late “It is P. 7. intended opportunity children facilitate purpose. public no serves education get to Cochran a secular Education, Board of State v. Louisiana Ry. v. Holmes, J., Interstate 370; 281 U. S. opinion of 79, Massachusetts, Cooley, 87. See S. 207 U. 1 of District No. v. School in Stuart J. thing (1874). The same Kalamazoo, 69 Mich. 30 needy legislation to reimburse true no less fares payment of the parents, for all parents, or they can ride that so children of their than run rather from schools busses to walk- hazards incident and other risk traffic Connolly, v. Barbier ‘hitchhiking’.” See ing or - 32) cases also See 31 (113 U. S. supra, at 31 Nor 806. 413; L. R. A. 118 R. A L. collected private it follow has does that a law a rather than public purpose provides a raised funds on account of because it tax- paid will be reimburse individuals spent money way them in a which public program. a furthers Southern Coal v. See Carmichael Co., S. & Coke 801 U. 518.” (Emphasis supplied.) cutting course, P. 18. church schools ---“Of off separate indisput- from these services so so ably religious function, marked would off from oper- make it far ate. First Amendment. state more difficult the schools to obviously purpose But such is not requires That Amendment groups to be in its neutral relations religious non-believers; not believers and does adversary. require the State state to be their handicap power is no more used as to re- to be so sup- ligions plied. ) (Emphasis than it them.” is to favor parents may, in has said that P. 18. “This Court discharge duty compul- their under state laws, a re- send their children to sory education ligious if the school than a school rather requirements, secular educational meets the the state impose. power has See Pierce v. So- appears Sisters, 510. It ciety 268 U. S. Jersey’s require- parochial meet New these money contributes no The State ments. support legislation, Its It them. does not schools. as provide general applied, more than does no children, regard- get help parents their program to safely expeditiously religion, less of sup- (Emphasis schools.” accredited and from plied.) Supreme States Court noted that the United It to be constitutionality only affirmed Everson case in the transportation providing legislation theory” “child benefit public expense pupils under at against transportation the con- law upholding but Federal the First Amendment that it violated tention upon grounded decision indeed the court Consitution 175 religion right guaranteed by free exercise of First Amendment. (1930), Board Education In the case of Cochran v. Supreme U. S. United States Court scrutinized supplying public

a statute the State of Louisiana from money tax school free secular books of cost to Taxpayers sought children of that State. had State furnishing any restrain State from officials such attending private books to children schools. The court against unanimously judgment affirmed a court State taxpayers Hughes in a decision who Chief Justice said: appellant “The contention of the under the Four- pur- teenth Amendment taxation for the is taking pri- chase school books constituted property private purpose. vate for Loan Associ- Topeka, aid purpose 655. The said ation v. Wall. religious, sectarian, private, to be and other sys- in the educational embraced by furnishing free to tem the State text-books attending private schools. The

the children operation legislation question effect of the Supreme were described Court State p. 1020) ; (168 La., follows ascertain where in vain to ‘One scan acts purchase any money appropriated church, private, for the use of school books sectarian appropria- or even school. pur- chil- specific purpose of made for tions were chasing of the school for the use school books state, It ivas cost them. free of dren of the resulting to the state benefit, their that children attend benefit True, appropriations made. these were private, school, public or the the some non-sectarian, and that latter, sectarian use, for their free them be furnished are to books schools, how- they cost, attend. whichever of ever, appropri- these not the are beneficiaries of them, nothing nor They obtain ations. obligation, single because of they relieved above are and the state children The school them. beneficiaries. It is also true that the sectarian schools, attend, the some of children in- pupils religion, struct and books are used purpose, diligently for that but one search acts, though result, the without in an effort to find anything purpose effect the that the is religious state to furnish books for such use - -- contemplate children is What statutes the same books that are furnished children attending public shall chil- be furnished only attending private dren schools. That is way executing practical interpreting and statutes, and what state board educa- this is doing. Among books, naturally none tion these is expected adapted religious tois instruction. although point stated, not The also is Court

importance that question, relation to Federal ‘only the use of the books is it was children, or, words, granted in other ” are lent to them.’ books having the thus at- “Viewing the statute as effect taxing it, can not doubt that tributed to we public purpose. poiver is exerted the State for schools, segregate private legislation The does not attempt pupils, its or beneficiaries or their private exclusively any matters interfere with concern. broadly; education, interest is Its comprehensive. Individual interest interests are method, safeguarded.” only common is as the aided (Emphasis supplied.) not violative of case ordinance in instant The bestowed, of the benefit because Federal Constitution paid transportation private publicly providing ‘bus have laws. pupils. Some nineteen now states school multipliedly in- appellants the ordinance as The assail of Maine Some of their the State Constitution. fractious of distinguished away and re- have been reasons advanced quoted. authority already The ordi- the eminent futed religion. pri- prefer It found to no embraces nance will be replete category whether conducted as re- vate schools as ligious religiously The enact- indifferent institutions. or spiritual, provides something physical, ment mental church, transportation educational, wit, bus. No person grant. school or can direct The receive indirect taxpaying parents already aid conferred is to who supporting public buses to scholars who are citi- school just zens of this State not second class citizens because they attend schools. ordinance an extra affords police curricular welfare It service. exercise power supplying public vaccine, much as the lunches, public X-ray inspections. examinations or dental transportation complement in a measure is compulsion imposed by neutralizer of the law of the this upon parents State and children that the children attend parents’ designation. some standardized the school of Kentucky Appeals Court of Errors and in the case of Henry Nichols (1945), Ky. 434, v. (2nd) 301 191 S. W.

934, held: “In enlightened age, this advanced and with all of progress that been made has in the field of legislation, humane and social and with haz- ards dangers and highway increased a formerly were, they what and thousandfold from compulsory apply-

with our school attendance la%cs ing to being rigidly enforced, all children and they are, any it cannot be said reason or con- 'with sistency legislation provide that tax our school trnsportation legis- children with is not tax safe public purpose. lation that a a Neither can it be said legislation, taxation, or such is in aid of private parochial sectarian, church or or aof designed school, nor that it than it is other what is purports legislation be, as we have stated hereinabove---- safety for the and chil- health our dren, The fact future citizens our state. that might ment, in a strained and technical sense school an indirect benefit from the enact- derive pur- defeat the declared not sufficient to

is practical pose and the wholesome effect (Emphasis supplied.) law.” periodical: leading a law From arguments “---Despite that these fact dangerous, highways children, hold that an effort extremely especially a be to induce court to should sufficient protect all chil- state power. police this is dren is a valid exercise of the If transpor- purpose providing statute free tation, the children well be considered its true advantage beneficiaries, received parochial private incidental and imma- supplied.) (Emphasis 51 Harvard Law terial.” Review, (1938.) 935. Wheat, 314, 199 Board Education v. 174 Md. A. In Constitutionality upheld a law the State court affording transportation private by the State to free pupils and said: private (the funds) it “Whether use finally, appears question a within whether in rule function furtherance school, seeing all children attend some doing protection have from traffic hazards. so compulsory, and attendance attendance is School at compliance private parochial schools is schools, fact that the law.---The schools, including parochial receive benefit Legislature’s presuming prevent the it could not public function.” Mississippi State contained

The Constitution following (208) : section religion shall ever or sect or sects con- “No other any part of school or other educational trol any appro- state; shall funds be nor funds of this school, any support priated sectarian toward the receiving any at the time of to that or school aas free aрpropriation is not conducted school.” Supreme Mississippi opinion Court of in an elaborate taxpayers’ prayer injunction prevent denied a to public granting pupils, officials to statute, accordance purchased State secular books held, with State tax funds. The inter alia: court religion age “The ad- to which children of school subject state; by here is not children the tending the to control but subject If themselves are to its control. pupil may by duty to at- fulfil the state why parochial to school it is difficult see may by pupil duty state not fulfil its encouraging is ‘by state all means’. The suitable duty creed, ignore but not under the child’s its need. It cannot control what one child think, the child pupil not, do can to teach but it can and must all it The state allows how to think. religious any creed should subscribe to proscribe right, because this his exercise him to all. common from benefits stampeded by random “Calm reason must control, by or or sectarian cries church state dog- din catechism and from the conflict of keep sanity im- us matism. A wholesome mune must ptomaine prejudice. disabling If throughout ar- there are words which statute suspicion rest the are seen lar the brary book attention of over-sensitized jaundiced eye symptoms of secu- control, may regain composure by viewing one great depository public li- state’s book as a all, any of books available to which sells anybody, subject which, to reasonable regulation, the free any allows use thereof to child (Emphasis supplied.) school.” Chance v. Mississippi Board Rating State Purchasing Textbook (1941), 190 Miss. 200 So. 706. appellants object in the instant case that the Au- gusta ordinance is unconstitutional appropri- ation entailed ais fund expended which is to be private purposes. pains No were appellants taken furnishing demonstrate general bus rides from pupils private parochial school constitute or revenues They support or leave assertion of a church. tax school at a amplification find customary ourselves we without possibly conjecture aid could complete what direct loss to application The ordinance is school. to church or result pub- typical police power power. service or police It any authority adopted by that indirect lic welfare measures private organiza- private advantages citizens inure fire, police protection, compulsory vac- acts, tions. Traffic regula- cination, similar health and countless ordinanсes sovereign, primarily for health welfare tions of private system benefit public of incidental its attending individuals, parents and their children incidentally and second- and in certain instances schools local parochial Yet the State arily aid to schools. or re- foregoing are not resultants because divisions legislating impotency for its own or inhibited from duced to safety primary and welfare. attempt with no

The instant case concerned private municipality school. State subsidize or Appellants ordinance “unconstitutional combat religious prefers one denomination.” ordinance legislates parochial concern- is not restricted to schools but stipulation ing private to all A bus rides schools. at case in substance that the time of the hear- states this private Augusta ing only qualifying schools transportation parochial. were There be other service at this or at some time future date: “ ‘The motive the framers discriminate

against appear does certain class language or ordinance statute will not make the enactment void or unconstitutional.’ Hing Crowley, S., v. 118 U. 709. ‘Evidence Soon as to the motive influences under which framers the law they (sic) are enacted is nullifying purpose admissible for ordinance.’---” Skowhegan (1917), Me.

Inhab. v. Heselton 117 17, 20. discriminating against legislation, “---Class legis- favoring others, prohibited, but some and lation, which, is carrying purpose, public is in out a sphere application, if limited its situated, within persons similarly operation it alike all affects (14th) amendment.” is not within Phillips 249, (1910), Me. State v. 107 256. pub- confirm that and our statutes

The ordinance reveals transportation public pupils already bus lic have school essays supply a to them. ordinance available pupils facility a as class. primarily a function and not

The ordinance serves religious Education, supra. Board a one. Everson v. beneficiary.

No church a or school is (the benefit, childrens’) “---It was resulting appropri- that the benefit state schools, however, ations were made---The appropriations.” of these not the beneficiaries supra. Education, Cochran v. Board of prefer religion and in The ordinance fact does not religion aid to a benefit without direct confers school. state,”

Appellants advocate “the wall between church and separation state,” indispensable “the as church religious equality of the two ex- and freedom. The first pressions employed by Everson Board was the court in v. Education, supra, reality a concession to was secu- figure 1984, Cardozo, speech. lar humanism. a In It is Snyder J., Massachusetts, v. 291 S. had U. against dependence metaphors: warned on perversion “A fertile source of in constitutional

theory tyranny is the of labels.----” in Due Process and Disestablish- Professor Sutherland ment, Eeview, 1306, (1919), 62 Harvard Law wrote: separation very satisfying “The meta- wall of fine, tangible,

phor. firm It has sound. No one metaphor But a where a stone wall is. can doubt slogan generally than usable more effective (Emphasis definition;----” supplied.) aas pref- being a mark of naivete of mind “---one slogans Edwin over solutions.” erence for Prof. Supreme as National School Court S. Corwin: Board clarifying metaphor, of terms a definition To debate disputants mandatory find themselves bereft soon or is a common issue. nor in of the United States in the

Neither Constitution “the are to be found of the State Maine the Constitution separation of and or “the church church state” wall beween requisitions. Amend- In the First terms or and state” as and in Article Section 3 ment the Federal Constitution religion Maine the disestablishment of our Constitution religion. together guaranteed freedom of “Disestab- with religion. not ‍​​‌​‌‌​​​​‌​‌​​​​​‌‌​​​​​‌​​‌​‌‌‌​‌‌‌‌‌​‌‌​‌‌​​​‍precludes It does an official lishment” state society godless. Maine be doom American or religion in has had an “---No state established frankly tax-supported chosen sect the sense of since Massachusetts Congre- disestablished Sutherland, supra, gational P. in 1833.” church 1309. and the Federal Maine Constitu- preamble of both words, people begins “We the with identical

tions of”—Our people acting governments in are the and national state allegiance through legal po- and binding patriotic and sovereign re- Our of their societies. litical instruments superiors. ligions groups persons and their clerical are When, talking speak are “state” we we of “church” or of composite people, persons, in so- human individuals about groups. “church” ob- Neither the “state” nor the cial people jective entity existing by itself Our are somewhere. individually singularly this State and and citizens both of religious they generally of a and are also adherents Nation person. other, espoused by They or for himself each faith separations or rifts within confess and are conscious of no walls, split figurative, themselves, no real no inside or religious ego. personality They and between the civic religious upon all in accord their fellows civic subjects separations or but few will countenance real walls ignore compatriots. reference If we wish to temptations express modus rhetoric the true vivendi America, solemnly in Maine and all cov- is this: we have constitutions, require, enanted our we no shall religion may preferred either, peo- before other government ple’s religious liberty always and that must Synchronously obtain for all. with these edicts of disestab- religion lishment of worship state of freedom each guarantee blessing constitution hastens its and its .to each exhorting worship citizen according him light, God to his society pluralistic American and that of Maine are religion “religion dynamic and culture and is the element (Prof. Christopher in culture.” Dawson.) judicious A co- operation leavens, religious politic, between is there- constantly fore practical indicated. As necessity there sponsored be intelligently must and observed the balanced arrangement availing policies the in sound of well reasoned perturbed sweeping applica- decisions rather the than and religion” interpretations. tion of fearsome “aid to Problems generally by there must be but resolvable considerations of degree. Piety Common sense will often suffice. need never segregated History be from affairs. civic witness been, permanently. Piety it never has “buries under- its (1921), v. Mockus 84, takers.” Our court in State 120 Me. golden appreciation an admirable demonstrated by enforcing blasphemy subject mean within statute. revivifying the Supreme Court since

The United States metaphor Everson and state” in of “a wall between church Education, supra, away it to Board veered v. has emphasis upon cooperation church between the doctrine of right so-called, acceptable state, constitutionally and as religion. In implementing of freedom of the exercise Zorach (1952), case of v. Clauson U. S. Attorney filed which the then General of Maine incumbent (Douglas, curiae, brief amicus it effective was held: J.) slightest P. 312. “---There cannot be the doubt philosophy that the First Amendment reflects that Church separated. should State be And far as interference with ‘free so exercise’ religion religion and an con- ‘establishment’ of cerned, equivocal. of hibition separation complete must be un- scope First Amendment within the coverage exception; permits pro- no Amendment, is absolute. First how- every respects ever, that in and in all say does separation there shall be Eather, cific Church State. manner, spe- studiously defines the the. ways, in there shall no concert dependency one on the other. That union or common and sense of the matter. Otherwise the state hostile, religion aliens each would be other — unfriendly. suspicious, and could even to Churches pay property required even taxes. Mu- not be permitted police

nicipalities not be render would religious groups. protection Policemen or fire parishioners places helped into of wor- who ship Prayers the Constitution. violate would appeals halls; Almighty legislative our Executive; procla- messages of the Chief in the Thanksgiving Day holiday; making “So mations help courtroom oaths---these me God” our Almighty that run references and all other rituals, through laws, cere- our our our flouting would be First Amendment. monies agnostic object even fastidious could A atheist opens supplication with which the Court to and this each Honorable Court.’ States session: ‘God save United ” religious people “WE a P. 313. whose insti- Stipreme Being. presuppose guaran- a We tutions worship tee the to as one chooses. We freedom variety a make room as xvide of beliefs spiritual as the needs man deem creeds neces- sponsor sary. part gov- on We attitude partiality group no to one ernment that shows and according that lets each flourish zeal appeal dogma. adherents and the its When its the operates encourages religious state instruction or co- religious by adjusting authorities needs, sectarian events to the schedule of it traditions. For then re- it best of follows people spects religious nature our and ac- spiritual public service to comodates needs. To hold may to that it not would be find in govern- requirement the Constitution ment religious to a callous show indifference preferring those who be- groups. That would religion over those who do believe. no lieve in religious groups finance nor Government religious instruction nor blend secular undertake and sectarian nor use secular institu- education religion any person. on force or some one tions requirement constitutional we no But find government necessary to be hostile it makes against weight religion throw and to efforts scope religious widen influence. effective government be neutral when comes to must sects.---” competition between cannot read into Bill ----“We 315. P. hostility religion.” philosophy Rights such supplied.) (Emphasis attempt by with no concerned case is instant municipality school. subsidize State or against protest Appellants that ordinance offends principles guiding the framers of the Maine Constitution against separation of church and staté and the mandate (Art. 8.) Appel- as contained in Constitution. Sec. array excerpts “Perley’s lants Debates.” The theories presently by appellants policy advanced are not the actually the framers of who disestablished the Constitution along orthodoxy (Mass.) and secular with state church religion in effect allocated both state and each to distinct sphere cooperation activity common areas of in- terest, e.g., aspects education, marriage, etc., particular over society authority of which each has and in an harmonious authority religious liberty. exercise of which will be found policy expressed Such within the Constitution. We re- negate iterate —the framers and the Constitution an estab- relegate religion hostility lished church do not but or evince to it. The and framers the Constitution tolerant are typical years following of the the American Eevolution. English Hales, E. historian, E. eminent Y. now of the Min- istry London, authority Education in theories wholly championed appellants unlike those result - movement, 1850’s, from the contempo- “Nativist” 1830’s immigrations. raneous with some thinking product sage framers and the eloquent content of are more the Constitution conclu- sive than the debates in convention. only

haveWe to read: legislature authorized, “---the and it shall be encourage duty----to suitably endow, their from time to ple time, peo- as the circumstances authorize, academies, colleges all may learning provided, seminaries of within the state: donation, grant any that no time be made institution now or endowment shall at legislature any literary as established, or which here- making established, unless, at the time of after be legislature endowment, such of the state shall right grant any powers to, in, have further alter, any powers limit or restrain vested literary institution, necessary shall be promote the best thereof.” interests Maine, Constitution Article VIII. any public

In 1820 if as we them few conceive England. “academies, colleges In existed New Maine had, part and seminaries” and those extant for the most have, religious reference. quote College.

We a resolve in favor Waterville In Literary 1813 Massachusetts chartered Maine and Theo- logical changed In Institute. 1818 the name was Water- College Colby College. favorably ville and in 1867 to This learning, 1828, sectarian, known Bap- institution of was tist. for College.

“Resolve the benefit of Waterville Resolved, Waterville of the in be, hereby is, granted That there and College, paid Treasury to be out of the State, dollars; of three sum thousand equal payments, payment annual the first to be day April Provided, made on the first of next: fifty dollars, That the sum of two and hundred hereby granted, appropri- from the sum shall be ated, annually, partial or total of reduction indigent the lege. of tuition fees students said Col- (Approved by Governor, February 18, 1828.)” 1, 797, Maine, Chapter Resolves P. Vol. XXXV. of following note the Without formal research we resolves: 10, College, $1000; 1829, 1832, 100, c. c. Waterville same 63, $1000; 1831, 69, 1835, Wesleyan c. and Maine c. Semi- nary, $1000; 1833, 74, Seminary, c. Westbrook $2000 $1000; 1833, 564, Improvement P. for the Resolve of Col- leges in Maine.

188 Maine, 1903, 91, c. P. 37 reads:

Resolves Colby College. “Resolve favor of hereby Resolved, appropri- That there be and paid dollars to of fifteen thousand ated sum College Colby the use for of said institution dormitory de- and furnish its it to rebuild enable stroyed by December last. fire in 28, Approved 1903.” March 155, 247, 1921, 1927, 1931, c. 141 c. c. Resolves academies, many of were granted sums substantial S., 19, purposes. 1930, religious, R. c. § for broad See 41, 105, 2, S., 1954, 107, 125. c. Par. R. §§ provisions contain for The Revised Statutes any academy,” “the payment trustees funds high grade” etc., there is no “free school of standard where religious reference.) (Academies have maintained. provisions. like of 1957 contains Act so-called Sinclair 1957, 364, 41, L., 142, 3, (1954), c. P. c. c. R. 105: S. § § S., 90-A, 443, (special session), also c. c. 17. See R. § § 405, VII, B, L., P. c. 1. § § appellants say legality What would the transportation academy, bus to an scholars tuition where paid municipality? by the — “Money purposes. raised certain for The voters meeting legal necessary raise the at a sums town support poor; buildings ---repairing constructing acad- institutes emies, seminaries or with which the provided in section a contract as 105 of has town (supra). (Emphasis supplied.) chapter 41” (1954), 91, 100. c. S. § R. long together may tradition with be read-

Other statutes Maine and its Constitution do not ily manifest cited to - - religion” regard to each and as “aliens other “the state unfriendly.” (Zorach v. Clau- suspicious, and even hostile, 34; 33, 146; 134, 145, S., 41, § c. supra.) § son, § E. c. § 11, G; 10, 399, Preamble L., V; c. §§ P. c. § Marriage Laws, etc. Constitution; wording the Maine Con- VIII of of Article

In view of grants thereunder of direct record and the stitution half, century several a Legislature one for almost conjure a religious it most difficult to private institutions publicly financed constitutionality mere aof of the doubt parochial attending private school pupil a for a bus ride Legislature. by the has been sanctioned when such service delegated legislative au- grant warrant With in Maine inhibition thority no constitutional there is gen- from which furnishes against municipal ordinance transpor- pupils free bus school tax revenues to eral and from school. tation to will present like controversies cоnfusion principles repetition here of the greatly dissipated

be restating precepts legal of some basic decisions through persisting con- antedating both natural law stitutions. Supreme leading

In 1923 the Court United States Meyer Nebraska, 262 v. U. S. 390 decided case teaching prohibiting subjects state law English teaching foreign language other than and the of a language grade the 8th was unconstitutional. below much, go very 401. “That the State far

P. do improve indeed, quality citi- order to clear; morally physically, but zens, the individual has which must mentally rights certain fundamental respected. protection all, speak to those who extends Constitution Eng- languages those born as well as other Perhaps highly tongue. it would be lish on understanding ready advantageous our had if all speech, ordinary but cannot be coerced this 190 —

by methods which conflict with the Constitution promoted by prohibited a desirable end cannot be means.” right P. 400. “---His thus to teach and the right children, engage parents to him so to instruct their think, liberty we are within the (14th.)

Amendment.” equally In 1925 in an fundamental decision the U. S. Supreme Society Sisters, in Pierce v. 268 S. Court U. unanimously parents requiring that a ruled state law under penal their children to was alternative to send unconstitutional because of the 14th Amendment. concerning question P. 534. “No power schools, is raised regulate reasonably to all of the State them, inspect, supervise examine to and pupils; require that all chil- their teachers and age school, proper that teach- dren of attend some patriotic good character and ers shall be of moral plainly disposition, that certain studies essential citizenship taught, good and that noth- must be

ing taught manifestly inimical to which public welfare. Nebraska, Meyer V. the doctrine “Under entirely plain the Act think it we U. S. liberty unreasonably with the interferes of 1922 of upbringing guardians parents to direct the -- their control under of children and education upon liberty all theory fundamental repose excludes this Union governments chil- standardize its poiver general dren the State accept instruction by forcing them to from mere only. child is teachers State; who nurture him those creature of coupled right, with the destiny have direct his prepare recognize him addi- high duty, to supplied.) obligations.” (Emphasis tional read as are to be com- just cited above decisions The two right parents control the affirm the panion cases right. children, an “unalienable” of their education rights religion “The of children to exercise parents give religious training and encourage as of state here, them and to practice religious belief, them in the against preponderant sentiment and assertion power voicing it, recognition have had Virginia recently most in West Board State Barnette, of Education 319 S. 624. Pre- v. U. viously Society Sisters, in Pierce v. 268 U. S. of 510, parent’s the Court had sustained the author- provide schooling, ity religious with secular it, right against the the child’s to receive state’s as requirement in at schools. of attendance And Meyer 390, Nebraska, v. 262 S.U. children’s rights teaching languages other than to receive against tongue guarded nation’s the common were It cardinal the encroachment. with us state’s custody, that the care and nurture the child re- parents, prim,ary side and in the whose function first obligations separation the include freedom supply can nor hinder. Pierce state neither v. So- recognition ciety Sisters, supra. And respected have that decisions this these family cannot enter.” realm life which state (Emphasis supplied.) Prince v. Commonwealth of 158, 165. (1943), 321 U. S. Massachusetts Farrington Tokushige, v. 273 U. S. in the 1927 case In highest that there are definite decreed same court territory power upon the limits constitutional regulate private that true such is (Hawaii) body may strongly lawmaking although the territorial promote necessary educa- regulation is that assert tional welfare. Tokushige, Farrington supra, a v. the decision

Since change in consti- significant development have occurred opinion at a time when was rendered law. That tutional applicable only interpreted as amendments were first ag- found himself One who Federal to the Government. regarded invoke those amend- grieved as free to was to deter State in order to the U. S. Constitution ments necessary practices. for such discriminatory It was generalized provisions of the upon person depend the U. S. Govern In decisions several 14th Amendment. principles however, decided that subsequently, has ment well as amendments do restrain States the first 8 Government, recognizing amend those Federal rights being quality of natural possess additional ments (See, against individual, pleadable the States. Many 319, 326.) Connecticut, 302 U. S. Palko v. ap and the court involved Witnesses cases Jehovah’s liberty, Amend plied word, in the 14th the doctrine vague liberty 1. Some of ment in Amendment includes give way generality of the 14th Amendment now ness and religious specific provisions 1 in lib of Amendment erty Supreme made these Court controversies. U. S. important observations distinctions: parties weighing arguments im- “In it of is process portant distinguish the due between as an instru- clause Amendment of the Fourteenth transmitting principles the First ment for Amendment and those cases in which for its own sake. The test of applied it is legislation col- of which Amendment, because

lides with the Fourteenth First, principles of the collides with the also only the than the test when more definite much vagueness of Much of Fourteenth is involved. specific disappears process when clause the due prohibitions right utility become of First standard. a, example, regulate, State to for of process due may include, as the so %oell far impose concerned, power all the re- test is of legislature may ‘rational have a which strictions speech and of adopting. But basis’ freedom of worship may in- not be assembly, press, of of They grounds. are sus- fringed on such slender prevent grave only ceptible restriction of danger the State interests immediate important that while protect. note lawfully It is di- which bears Amendment Fourteenth it is the specific limit- upon more it is the the State redly finally that principles Amendment ing First supplied.) (Emphasis govern the case.” (1942), 319 S. Barnette U. Board Education v. 624, 639. in the exercise religion restraints and from

Freedom appear primordial. The status thereof will thus peradventure. beyond parochial has been secured against possible foregoing bastions are decisions are children state where a totalitarian evolution toward and dies. regimented, freedom withers indoctrinated and guarantee are characteristic They so diversities which Republic. our opinion “---Compulsory achieves unification graveyard.”

only uniformity of the Barnette, supra, P. 641. v. Board Education then, land send their parents in State and When, this acting they are not parochial schools private or children to anybody. the sufferance teaching or for desired so- parents, not for better When conscience, convinced secular prestige are but cial children, re- schools are not sufficient education is along mere intellectual quired cultivation where knowledge transcendent man’s inculcated virtues are Along help it. with their destiny him attain and efforts to inseparable from God and not that children conviction parents hold a com- humanistically these self-sufficient impossible anything prehensive without reference idea of things begin, are conserved in all the Creator to Whom require properly and do of end. The laws can State legally religious they private teach schools that parents Religiously subjects. are standardized secular patronizing parochial acting compulsion in moral undеr added the also that severe stricture is schools. When truancy laws of our proper and well enforced but drastic 1957, 97; 41, 91, 92, 94, 95, L., 1954, P. (R. S., c. §§ State parents truly 47, 50, 51, 52) are 364, 48, then such c. §§ religious children to schools. constrained to send Scylla Charybdis and the of conscience There are the luxury, perversity, penal It not affair law. becomes rigueur. truly idiosyncrasy de one ambition or but social parents or fair to exact of considerate It is not facilities or they of all of the avail themselves very They position are They in a to take few. none. are physically obliged place their children our law to economically they of citi- a cross school. Since section By ; many them cannot afford a vehicle. indirection zens rights they may yield their natural and aban- be forced transportation don their cherished schools want traffic. then become of the admonitions of the modern What against prohibit- First Amendment to U. S. Constitution religion ing the free exercise and of Article Section 3 against hurting liberty of the Maine one his Constitution worshipping in the manner and or estate for God season agreeable most to the dictates his conscience or for his religious professions or sentiments? speech, press, freedom of “---Freedom all, religion merely are available to

freedom of way.” pay Murdock those can their own v. to Pennsylvania who (1942), 319 U. S. 111. relating pub passes specific Legislature laws When explanation some lic fewer private educational institutions it cannot enact for laws supra) Society Sisters, (Pierce and others has no v. occasion to make. duty (Legislature's) re-

“---it quire be their shall provisions to make suitable towns several expense support at their own for the and mainte- public (Emphasis ours.) of nance schools.” Maine, Constitution Article VIII. positive Legislature

That is a dili- mandate the has Legislature gently honored it. if the limited its en- But has private proper for minimal actments schools to standards compulsory attendance, etc., education, of secular there is justified implication Legislature thus no is the callous altogether impotent. private toward such On schools or the contrary, spirit wording in accord the of Article with Legislature VIII, always gratified pro- with the must learning general “a of the advan- motion diffusion through tages of education” all schools. We cannot infer Legislature opposed police power justifiable is provisions private Legis- for school scholars. When provides public transportation for lature school it is not functioning by police under VIII Article but virtue power of the Preamble of our Constitution. police power Legislature by

Exercise on be- public half constitutionally school children whom it is charged educating way by any with in no known rule of legal precludes, preempts reason osmosis or discredits by municipality legislative, the exercise of its endowed power police private parents school children whose must educate them. To contrary hold is to maintain that Legislature sought public protect because school conforming positive children while it was con- stitutional mandate to educate them it demonstrated prohibitory regard inference that it entertained no humane pupils suspended police power school City thinking this one instance. only Such illogical, it is uncharitable. Legislature has committed the administration

public school transportation funds and school bus department of educa- supervision and control Augusta. City did, well, charter to So

tion. department transportation to such the allocation for bus As Even to matter of convenience. was but inherent, indispensable or transportation not an pupils transporta- public Bus integral schools as such. part the of given in- a apostrophized and content to be tion is not public school essence of the It not of the is struction. pri- transportation. The without and has functioned could always had to endure with- parochial have vate although parents of the transportation, the public bus out very stipulation support it, and the pupils contribute to private schools educate that those it is conceded in this case transportation to the essential very public is If bus well. Legislature private without public, school. it is for assign privation schools could sensible safety facility police, or transportation traffic change Transportation acquires no department, etc. health teaching qualities because is nature, faculties or no department. Trans- jurisdiction of the education under learning. proc- physical It propulsion, not is portation is appreciable through space moving children without ess children transitu. to the education contribution instructing teachers. Bus carry boards no black Buses entirely adjunct accommodation in the transportation is an safety power applied and health police child for exercise of efficiency. and for school challenges case,

Amongst to the ordinance in this other pub- supply arguе appropriation to appellants an pupils transportation is a paid for licly already appropriation. we have observed such As “school” purely reference. only convenient in a manner is true police power and appropriation the exercise of Such Appellants teaching. contend and not social welfare Augusta City of and the statutes make the charter provision delegating authority City no to make appropriation. That “school” unless cannot sound appellants dispute rudimentary authority further City Augusta appropriate public safety, health and welfare. power government.

Police prerequisite Order power police health, safety are correlative terms. Public indispensable and welfare society to human and their highest government. duty achievement is the R. R. Co. v. Commissioners, 386; Starkey, 79 Me. State v. 112 Me. 8. power enough “This protect must be extensive retiring most citizen in the most obscure walks, corporations.---‘This greatest and to control the and wealthiest power police of the state protection lives, health, limbs, extends to the quiet comfort persons protec- of all and the property Thorpe tion of all within the state’ v. Co., Rutland Railroad 150---” 27 Vt. supra,

R. R. Co. v. Commissioners, P. 393. Legislature “With the the maxim of the ‘salus law populi suprema disregarded.” lex’ not be should Noyes, 189, State v. 211. Me. delegated Legislature by City

The charter to the of Au- gusta police power community: for that Augusta---a “The inhabitants the town of

body politic---and have, shall such exercise enjoy rights, immunities, powers, priv- and all the ileges ties and franchises, subject and be to all the du- obligations appertaining to, now or in- upon municipal corpora- cumbent tion, said town aas appertaining upon or to or incumbent the in- thereof; may or selectmen ordain habitants publish regulations acts, laws and not in- the constitution and consistent with laws this good state, be as shall to the order said needful body politic;----” (Emphasis supplied.) 75, L., 1919, P. c. 1.§ tranquil body politic” “good connotes order of said

disposition affairs, in some wise multitude reduced unity. Augusta’s charter. have examined all 87 sections of We exceptions

(P. 75.) 1919, moment of no L., c. With few delegated City police power is con- here, all of the “good expression, supra, order.” tained in in the Section “good compelling sequitur, therefore, order” It City safety signify “health, that the and welfare” or must Legislature being projected without was into Augusta imperative police power. authority City power plenary рolice munici- charter received for its safety, pal health existence. For existence the sufferable paramount and there is welfare of its children nothing Maine inconsistent with the or laws of Constitution Legislative or with mind in the of children. weal opinion advisory Our court said: has ordinary granting city “The au- form of a charter thority to enact ordinances inconsistent delega- is a Constitution and laws of State power.” police authority tion of to exercise Opinion Justices, 509. 124 Me. legislature, obviate the “---The in order to state specific difficulty making of all enumeration delegate municipality, powers it intends general usually power some terms---- confers Special a clause are often concluded with charters conferring general authority pass all ordinances promotion necessary municipality safety health, which and welfare in conflict with constitution are not general laws of state----” Municipal (1957), Rhyne: P. Law 72. city State, the council a miniature “---The legislature, constitution; is is its the charter

is its and it is granted power enough that, if, general terms, granted, for when it must neces- sarily subject be exercised to all limitations im- posed by to provisions, power constitutional and the prescribe is, ‍​​‌​‌‌​​​​‌​‌​​​​​‌‌​​​​​‌​​‌​‌‌‌​‌‌‌‌‌​‌‌​‌‌​​​‍except the mode of its exercise as restricted, subject legislative discretion of the council.---” (1893), 30, Paulsen v. Portland 149 U. S. 38. difficulty making specific “The of to enumeration powers Legislature may

all intend delegate municipal corporations it renders nec- general essary power to confer terms---” some 607, (1905), Porter 38 So. v. Vinzant Fla.

608. general grant power ordi- “---A to enact all enumerated, nances, promotion municipal in addition to those affairs, police sanitary welfare, general order, industry, commerce and though always, give generally, considered authority upon enact all other sub- ordinances scope municipal jurisdiction jects which within the specific mentioned in enumer- are not ----” ation ed., McQuillin: Municipal Corporations, 3rd Vol. 16.09, P. 173. § very merit in an assertion that when doubtful There is Augusta power granted police Legislature was not would come when commerce and time “foreseeable” power to exercise such make it advisable traffic would health, city safety children. and welfare authority police power grants have found no We strictly ordinances thereunder albeit must be construed reasonable. general police have statutes this State conferred

power upon municipalities: all “Towns, cities, village corpоrations may by- make ordinances, law, not inconsistent with

laws

200 penalties, pur-

enforce them suitable poses following: and with the limitations establishing police regulations,---and II. For good preservation of order--- Respecting---health.” III. (1954), 91,

R. c. 86. S. § Moneys appropriated and raised for enforcement of regulations power police are authorized the clause: charges.” necessary for other “and town (1954), 91, R. c. 100. S. § “police regulations” II, above, term, employed “police force”; not limited to the “ relating safety, and ordinances ‘Laws comfort, eral order, gen- health, convenience, good and styled ‘police of the inhabitants are welfare regulations’.” Ry. (1919), v. Texas Co. Dantzler Lumber Co. See, 80 Words So. 776. 119 Miss. Ed., Phrases, 32 A. P. Vol. 479. Per. Regulation. The to define term used “Police primary In its power or narrow sense police power in the state. which resides refers to exercise health, protect the lives morals acceptation it people. In broader em- of the general great public promote the wel- everything to braces everything fare; essential provisions plural, of law as are In the needs. limbs, lives, health, com- protect designed to them in and to secure quiet citizens fort regulations adopted property; enjoyment power’.” ‘police exercise in the Secundum, Corpus P. 207. Juris 72 Augusta ordinance the enactment of Before laws, municipal of the adopted a revision Legislature be effective August, That revision will 1957. take effect spending Augusta and the ordinance during of the the life very attitude liberal appropriated. It reveals money police municipal power. toward Attorney General Legislature authorized

In 1955 municipal forming study laws of his a committee changes Legislature and report to the 1957 and to and com- calculated to consolidate as were amendments archaic and contradic- eliminate plete as “to such laws so readily more provisions” and “to make such statutes tory municipalities persons the useful understandable 1955, S., 214. thereby.” c. P. & affected Attorney Legislature the incumbent In to the 98th 1957 municipal proposed revision of our forwarded General response prepared committee in him and his laws suggested legislative directive 1955. With such revision Legislature Attorney a letter to the advis- General sent ing: report give complete in this “The work sheets chang-es and the

explanation for made reasons them----” treating (1954), Page of R. those work sheets S. 40 of reproduced partially II, III, supra, cited c. § follows: ter the regalatieas, “II. ids esíafefehieg poli-ee erisae, gres- el ««4 property ©I peeteetswa eeder, the «se aad aeé te regálete geed eevatie» eí i» ífee streets. Pro- bicycles the «se eí manaes eí welfare;---providing general moting the safety.

Comment: parts of and last first becomes This A3 1 N S regulations’ deleted. ‘Police police general This subsection is a statement power. welfare,’ ‘Promoting general which I, ‘prudential includes affairs’ taken from Sec. general following language is a statement Along ‘providing the Federal Constitution. with public safety,’ expresses general broad

for power ‘prevention crime, pro- includes good property, preservation tection of added.) (Italics order.’ infections disease “III. Reapacting---preventing promoting health----” Comment: part middle of N 8 1 A.” S

This becomes Attorndey model General’s In accordance Legislature a revision as follows: enacted power A munici- ordinances. 3. Police

“Sec. police power ordinances pality following purposes: enact I. General. pre- Promoting general A. welfare: pro- sup- promoting health:

venting viding plied.) disease public safety.” (Emphasis the for 405, 1957, S., c. 90-A. L., R. P. c. general “Promoting phrase, the appropriating the

By very preamble the United of in the welfare,” which occurs police the as the basis and serves States Constitution Legislation gave power National Government in our municipalities power of willing police evidence of broad. be municipalities granted authority to Legislature

The 1957 police power: money for appropriate “Municipal Finance Purposes money may which municipality may for 12. Sec. appropriated. A raise or

raised following purposes: money for the appropriate or VIII. General. Performing required any of

A. the duties of it law. Providing any operations B. authorized by penditure which, by require nature, law ex- money.” L., 405, S., 1957, R. 90-A. P. c. c. general granting or ex- “A welfare similar clause

tremely power municipal corporation, to a broad is municipality liberally to accord to construed police power. in the exercise wide discretion cases, increasing judicial indeed, reveal in- a clause to accord to clination under such munici- pal and discretion in the reasonable authorities wider nondiscriminating exercise, good faith, power police interest.----” 6, McQuillin: Municipal Corporations, 24, Vol. § 535. P. police power evaluation of ordinances this court

For adоpted a criterion: has Sanford, page Maine, (1877) “In v. Jones Peters, speaking of the au- late Chief Justice pass upon question thority the court by-law of a or local ordinance said: reasonableness apply, principle is does not where done ‘This directly municipal corporation by thorized is au- legislature. by the But to be done where general one, granted power the ordinance it, pursuance of be a passed in must reasonable ” power it invalid.’ one Mayo, v. 106 Me. 62.

State police power has been By statute dele- charter and Augusta. gated City It remains us to estimate passed. in the or want ordinance reasonableness presumption of the ordinance. in favor is 204 ordinance, however, “The should be viewed as

whole, light purpose in the of the for which it was presumption enacted and with the that it was not enacting body the intent to exceed its au- thority.” (Emphasis supplied.) (1920), 455, State v. Brown 456. Me. plainly purports “---Hence, an ordinance which health, be enacted in the interest of safety in presumed and enacted or welfare is valid only good faith, be declared invalid clearly appears does the ordinance when degree appreciable to that end and tend in an not legislate power to has been exercised arbi- that the

trarily the enactment of ordinance which is plainly faith in the enactment unreasonable. Good presumed----” of an ordinance is McQuillin: Municipal Corporations, 5, vol. Sec. 15.23, P. 109. proof: to the burden As objecting party to is on the over- “---the burden presumption.”

come this (1927), 126 Me. 237. Small State v. discriminatory. not The ordinance question the act in have never as “---‘Such laws legislation simply regarded class because been another they and not inasmuch as affect one class alike, same class they affect all members up- in the law founded involved the classification If these laws be otherwise basis. a reasonable on required these unabjectionable cases is can be all that application general they their apply, they locality they to which the class character, pro- and of public in then Legislature judge.’---” must policy priety Me. 256. Phillips (1910), v. State expressed: any, Discrimination, must be if “ to discriminate the framers motive ‘The appear which does against a certain class

205 language not of the ordinance or statute will enactment or unconstitutional.’ make the void ---” Hing Crowley, 113 709 Soon v. U. S. 17, SKowhegan (1917), Me. v. Heselton 20. attempt

The ordinance inaccessible does utilize apprоpriations provides appropri- but own its general ation from tax revenues. acknowledges compulsion

The enactment factor of in resulting parents school attendance and the dilemma of humanely safety affected. It consults the and health of pupils attending non-governmental those elementary school schools who reside more than a mile from such institutions. arbitrary judicious The distance fixed is not at all but city consideration of age and suburban traffic and the health, The safety scholars. avowed interest in the welfare of the children ais matter of the worthiest solici- highest tude and concern to the State of Maine in its precious product. most apprehension displayed is en- tirely justified. “Further with reference ato test of reasonable- ness, variously has been stated that the reason- ableness of an ordinance to be is determined in the light purpose entirety, its as an remedy

view, complexity dangerous and the conditions city; of the modern crowded the court must regard prevailing city conditions in the or bearing directly subject town matter, on the sought object need, pro- be attained and the priety desirability legislation, and that by-law ‘to arrive at correct decision whether the regard not, be reasonable or must had object necessity’---” McQuillin: Municipal Corporations, Yol. 18.06, P. 398. § Superintendent Augusta the Public Schools ultimately in this case. He resolved testified his doubt that transportation degree school bus considerable safety apprehension for the children served. concession safeguarding health he did not to the motivation As misgivings. inceptive voice For the reasonableness of just ample. protection the ordinance health would seem Maheu, However, State v. 115 Me. 318. court will this days prime judicial safety, justi- take these notice transportation. fication for the intelligence persons ordinary “Facts which all presumed know, proved. need not be State Kelley,

v. 129 Me. 8.” Torrey Sq. Cong. (1950), v. Hotel Co. 145 Me. 234. determining “In whether not there credible evidence in a record from which conclusion certain drawn, precluded be court is bringing applying problem from and to bear that which is derived from sound common sense beings, living populated by in and a world human knowledge the observation and of their actions and in and to situations encountered reactions ‘Judges ordinary in the conduct of human affairs. necessarily ignorant in of what are not everybody are court court, else, they and themselves out with; why and there is no reason familiar ignorant they pretend than the to be more should Walker, Applied Enterprises v. mankind.” rest of prinсiple (2nd) 261. is as Del. This Atl. justices applicable of the Law Court applicable pruis. ref- justices at It is also nisi applied may, only in It not but should erees. determining conclusions should be drawn what existing facts.” (1950), Bros. 146 Me. 16. Reed Melanson v. approval: quote appellants in their brief “Emphasis upon of rural schools consolidation necessary thirty the trans- past years has made the portation hazards on the pupils avoid traffic to make consolidated schools highway, indeed supplied.) (Emphasis possible.---” Bulletin, Volume Association Education National December, 1956, P. 188. XXXIV, No. Kentucky jurisdic- Court in 1945 found that its tion: dangers “---the highway” hazards and of the (had) they “increased a thousandfold from what

formerly were,---” Henry Ky. 434, Nichols v. (1945), 301 191 S. W. (2nd) 390.

It is a matter of universal information in mechanized improve- America for a there lifetime has been road throughout by ment States Federal Government. Through highway departments all States have striven vigorously grade crossings, to eliminate intersections and accelerating the ever traffic. So the school author- ities and districts as instrumentalities States have progressive highway collaborated for the reduction haz- programs ards transportation. the means of of school bus practices One of the finest peo- of the American customs ple diligent is its tender safeguarding from traffic of most of logic equity school children. In and in and in justice distributive service must be extended to all school children. August,

In 1958 the Chief of the Maine State Police is- public warning sued a pupil to the who missed his school bus.

That quoted: official was thus times, “---There are another, for one reason or youngster when a will miss the means, bus. This instances, some that he must walk two or three to course,

miles his home. constantly tue warn Of him to road, tvalk on the side lefthand if there are no prepared sidewalks, scramble ditch, into the necessary, to avoid be- if ing struck a car. “However, wish, against we also to warn him an- very danger. other inal real The case files our crim- carry many youngsters bureau records of who

208 a getting car with into a mistake of

made the again. stranger. never seen of them were Some far, strongly. It point is this too “I cannot stress way than it is home all the far better to walk know.” person you accept do ride from supplied.) (Emphasis August Telegram, 17, 1958.) Sunday (Portland judgments dif- State Police entertains The head of our intensity emphasis and fering in their somewhat Superintendent of Public Schools. those of the apprehensions of the Chief of the Police are State attending foreboding the children standardized non- legal government compulsion under moral and parents those children to their but save fоr ordinance Augusta similar enactment must “miss bus” parents help support. must which their long Daylight Our are and cold. then winters hours are at a are often minimum. Sidewalks non-existent or im- passable jeopardized. and ice. snow Health is The alert- may vary fatigue, distraction, ness of children with quality or of natural state reflexes oblivious- play. ness wholesome School can hours leave exhaustion. training Education mental citizens who disability infancy. disability persists under That al- though attending private elementary the child school. scourge

A national is motor casualties. For 1957 and 1958 these are official statistics of our State which is com- paratively population amongst small in other States:

1957 Age (Pedes- (Pedes- Persons Persons Group trianis) Injured tricms) (Bicycles) Killed 0-4 7 268 94 5 3 5-9 13 10 377 184 28 10-14 3 5 358 64 56 - 19 17 1 929 18 1932

42 19 360 94

209 1958 4 0-4 6 296 77 15 41 228 622 5-9 14 7 2 401 59 24

10-14 10 2 985 22 15-19 18 1 71 2304 386 ubiquity in and the nation of the “Slow--- The Maine signs eloquent of the of the consciousness School” is danger lurking all children. mind for as to judge concerning It mistake to issues not uncommon upon premises and children the same same standards regard youngsters applicable with to adults. Such is true walking considerable to school severe climatic distances highways. along busy conditions and especial police power. predilections

Children are authority “The state’s over children’s activities is broader than over like activities of adults. rests, society for its “---A democratic continu-

ance, upon young people growth healthy, well-rounded maturity citizens, as into full implies--- all that rights, in common with “It true children have highways. people, primary use, of older in the dangers afford But even in them not streets such use affecting adults---” (1943), Massachusetts Prince v. Commonwealth of 158, 168, 321 U. S. 169. Augusta appears acted City have with consider- safety. health and for child in its ordinance

able reason applied give remedy objective sanction and the Legislature delegated authority of the enactment within “good justified order of said that sanction be whether - - - regulations “establishing body politic,” police general “promoting good preservation order” or words, look the charter or, we welfare” in other whether or the basis. statutes

210 young extraordinary very Abra- if the have

It would been had encountered Eoosevelt Franklin D. ham Lincoln or Appellants way aver his to school. traffic-hazards on departure Augusta in are a new such as that ordinances wanting adjudged in au- therefore must be Maine and Legislature. here is The ordinance from thentication novel but that is necessary, indictment, if it not a is valid police power. and an exercise reasonable (the police exercise exercise “---Its pоwer) wider, more varied and fre- become must society---” progress quent, with the County Railroad Co. v. Commis- Boston & Maine (1887), Me. 393. sioners adaptable, power It must be not be static. can Police people, vigilant. not The law exists for and resourceful people for the law. rigid something power which is is “---this very contrary, definitely fixed; in its on considerably elastic within it must be nature limits changing shifting meet the in order through to time arise from time conditions which population and flux and shift of increase the and complexity relations. and social commercial dynamic power police in ‍​​‌​‌‌​​​​‌​‌​​​​​‌‌​​​​​‌​​‌​‌‌‌​‌‌‌‌‌​‌‌​‌‌​​​‍words, is In other principles, character; fundamental virtue and mathe- inexorable with be defined not to certainty inherent nevertheless but matical copes government, with the new fundamental justifies measures in the old has with as it past.----” justified present in the it has not Corporations, Municipal Vol. 3rd McQuillin: 24.03, ed., § P. 445. exigency, purely responds modern ordinance progression. alarming It con- arithmetic traffic disasters preoccupancy sympathetic with mass the more

forms immediately preceding age those differs Our health. concepts acceptance as contrasted of social of our it because Rapid de- the individualistic attitudes of other times. velopments social, political produce life an and economic always increasing complexity society and broaden social field. needs not service School children have welfare indispensable known before. Public welfare measures populous adopted and are commonly States now in the more day. emphasis per- clearly placed of this has on law property. sons rather than standpoint the ordinance reason-

From economic cumulatively prime It able. true. is not conse- Such ap- quence in view of the human values involved here. The presented testimony estimating pellants, however, the an- private transportation supplied nual by cost of the school figure $7,000 $8,000. the ordinance at a between The Department establishing State of Education has records that, capital plant charges without inclusion certain costs, outlay years, service the the debt for each of 1958, per average daily membership public for each elementary Upon pupil multiplication school was $227. appear that, city will without cost the and at an annual saving $200,000 private plus, providing the schools are young standardized and successful secular education to citi- Augusta. city zens of By hardly the ordinance can be ad- judged improvident. consequence Of truer and aside from foregoing worthily endeavoring the city the to conserve safety the health and (308) one of a third asset child beyond price. Augusta infringes upon

The city ordinance neither the United States nor the Maine Constitution. Sufficient au- thority delegated city has been by Legislature for law, by enactment this both charter and statutes. The applicable act by is reasonable all By judicial standards. precedent, experience statistics and from common necessary. life the just equitable. act It is Under justification there no postu- circumstances can be for public responsibility, exception safety lating an isolated frustrating impotent police power suspending doing creating city. By variants be bothersome so we would embarrassing a and self conscious for child the law. How in trudging private in throb- school to find himself citizen to a judiciously bing policeman dis- traffic where the must might criminating. policeman lead the take it that We might carry “piggybacking.” But child child. He unto might police safety car the officer not succour child police injured, perhaps, already not been car who has non-legal closely akin to bus. is too related and school might transport patrolman private car an un- The his private injured parents may child to school. child’s public car. their own school bus is out of bounds for pupil parents have even were his saved receipts year. tax Therefore the for the current officer might walking have to the child. continue as must There policemen. no more mounted the child all while Let keep the truant in mind. officer We could extend the non- descript situation further. We wonder more could about transportation pupil the status bus attend- ing religious paid academy and whose tuition is municipality. Legislature can blame We which has adequately. functioned There can be no true distinction amongst eligibility children to their bus trans- portation private because attend some schools which are not supported tax and whose curriculum secular affords edu- the cation with eternal verities. legislative sanction and is valid.

The ordinance has (Supplemental Dissent) J. Dubord, supplemental opinion pin point purpose of this important aspects emphasize the the some of of case before us. though may person judge,

Even be a his intellect is not knowledge commonly impervious of known matters am, therefore, people community. the all of a I not without cоntroversy City prevailed in awareness of the Augusta ago years just previous of to the few enactment of the ordinance now under This contro- consideration. versy parochial conveyance involved of of the issue children, Augusta school and in order that the citizens of might express opinion upon have an opportunity to their following the issue ques- there them was submitted tion : Augusta City appropriate “Shall the funds for parochial

transportation school students?” a matter record that It is on December upon question submitted, people declared its affirma- plebiscite by a tive vote of 3915 to 2470. plebiscite people, City

Pursuant to the of the Council City Augusta, safety solicitous for and wel- very elementary children, wisely of all fare enacted authorizing appropriations conveyance an ordinance children such of the choice parents. action, part Augusta City This on of the Coun- cil, police power City is authorized under the of the of Au- gusta, Augusta provisions City both under the Char- Chapter 405, ter and Public Laws of 1957.

Then followed the institution of the instant action protagonists opponents. thirteen In order that persons go names of these thirteen into the records permanently, anonymity lost in the of a title Squires, as Alden W. et al. v. The Inhabitants of the City Augusta, ah, et let it be recorded that their names occupations Phys- Squires, as follows: Alden W. ician, Administration, Togus, Maine; Veterans Rev. Har- vey Ammerman, Congregational F. Pastor South Parish Church, Augusta, Maine; Bridge Bailey, Engi- F. Herbert Brawn, Department; Highway Franklin

neer, C. Civil State Ellis, Department; em- Highway Kervin Engineer, C. State Togus, Maine; Administration, Don- ployed at the Veterans Togus, Dentist, Administration, Hayward, Veterans E. ald Agent Heistad, Mu- Trygve Northwestern Maine; General Hilton, Company; Bank Ex- Leslie G. Insurance Life tual Manager, Kinsey, Gardiner aminer; General Robert E. Promotion, Smith, Mills; Director of Sales Paper Albert E. Augusta, Maine; Company, William Maine Power Central Insurance; Stanley Sproul, E. Sprague, Estate and Real W. Worker, Tozier, Dorothy Au- Dealer; Social Lumber Hospital. gusta State genuine opinion thou- sorrow

I write this boys girls, who, result young innocent sands safety opinion denied of trans- majority will of the they im- From attend. portation to the schools responsibility. myself of I pending result absolve upon largely equity, was instituted bill in The instant City and vote Council theory the ordinance that conveyance money Augusta appropriating City of repugnant Con- parochial children was school Maine and of the United States of the State stitutions preference of one sect they constituted America, resрecting purported to be a law denomination religion. Superior who Court Justice establishment basing pre- outset, on the decision at the his the bill heard constitutionality, the bill and sumption dismissed appealed. plaintiffs this decision said in Supreme of the United States has Court expendi Education, 330 U. S. Board Everson v. conveyance for the funds tures of Constitution, of the Federal nor do pupils not a violation religious preference expenditures of one constitute edict Such an ulti denomination. constitutes sect or land. mate law of the

215 City As to the assertion that the action of the Council of City Augusta purports respecting to be a law religion, allegation establishment of such an can be con- only plain absurdity. as a strued majority associates

Our who constitute the have fit seen disregard to the constitutional issues and have written opinion upon theory only that the issue is that of authority Augusta City police Council under power. appellants

If counsel for the provisions are aware of the of the Constitution of education, Maine which to relate pursuant statutes enacted appropriations thereto and the Legislatures made throughout Maine past years 139 colleges, favor of many academies and of which were by religious sects, founded conveyed they have no such knowledge to the court.

Article VIII of the Constitution of Maine part reads as follows: general “A advantages diffusion of the of educa- being tion rights preservation essential of people; promote and liberties of the to this

important object, legislature authorized, and duty it shall require be their the several provision, towns to make suitable at their own ex- pense, support for the and maintenance of schools; and it duty shall be their en- further courage the circumstances suitably endow, the time time, as people may authorize, all academies, colleges within the state.” learning and seminaries of (Emphasis supplied.) provision, This constitutional well as as several de- Supreme States, dispel cisions Court of the United metaphorical fantasy words as “the wall be- state,” separation tween church and and “the of church and state.” good

No American citizen desires to see the State united However, Church. we are a nation founded on abiding Power, belief in God and with an in a Divine faith religion. certainly not hostile to authority, above, cited constitutional Pursuant 100, Legislature Maine what has enacted been Section Chapter 91, S., under which were R. towns authorized buildings repair and construct academies semi- Chapter 91, repealed has now been naries. Section Chapter superseded by However, Public Laws of 1957. years during many during which this statute on was appropriated spent books, money and in Maine towns our many religious which had to academies of a aid direct foundation. imposes duty Maine Constitution a on of VIII

Article “suitably endow” academies. To to endow Legislature gift academy a and academy to make means Legislatures Throughout have done. Maine exactly what is appropriated money for the direct been bene- years has colleges. containing In the volume academies fit of Resolves, Chapter 160, will be found Laws Public 1921 long academies a list of which were voted includes which including help, some Roman Catholic insti- financial direct religious learning, many a well as others tutions foundation. 105, 41, S., Chapter also called to Section is R.

Attention superintending authorizes school committees which schooling the trustees of academies for the contract with high town, pupils when no free school is within provision This has been carried over into maintained. Chapter 364, Sinclair Public Laws of. known as the Act, given stamp constitutionality of which Act was

217 Opinion January 14, approval by this court on 1958. See Justices, Me. record 469. It matter of that 21 is throughout of Maine en- different academies State have foregoing into section tered contracts authorized religious many the statutes and of these have academies background. Thus, help direct foundation and financial is given religious which are no less institutions character Augusta. parochial than are Legislature appropriated 1957, the 98th Maine late as As Higgins Classical Institute to aid $25,000.00 for build- dormitory replace boys’ ing one which had been de- of a stroyed fire. Legislature

Moreover, authorized Aroostook the same year ensuing expend $10,000.00 for each County to College. for Ricker biennium organized pro-

Higgins was under Classical Institute Chapter 91 the 1891 Public Laws one of visions promote purposes education. Christian its College Academy, to Houlton successor Ricker legislative authority organized by among was promotion purposes piety corporate is the and re- ligion. outstanding two is record of these institutions opposition any There evidence of is no to education.

field of However, purposes. expenditures for such worthwhile these appropriations direct aid to do constitute institutions of religious learning foundation. These which have facts are еnlightenment opinion those for the included this who knowledge expenditures public that such are without learning by for direct aid institutions founded funds religious and countenanced are authorized sects con- statutory provisions of our State. stitutional foregoing Perhaps a basis information serve as part contemplation on the of those who fear parochial public expense conveyance children at school separation of the nebulous doctrine of church violates state. light statutory authority

In the constitutional argued appropriations, how can it reference conveyance expenditures pa- of little children for the rochial is unlawful diversion of schools funds? money, gain particular receives church sect nor other No only recipients The children themselves are the therefrom. accruing Supreme any In event the of the benefits. Court the United States has furnished answer and has said expenditures are lawful and that such constitutional. majority opinion municipality recites that a is with- expend public conveyance power to funds for the out of ele- pupils except mentary from school other source appropriations. conclusion is school This reached say conveyance they the matter of because of school chil- component part made a dren has been the educational being chapter program included in of the statutes re- reasoning lating upon to education. Such based an un- unconvincing. premise impossible oper- and is It is sound buildings, teachers, ate schools without school text books necessary equipment, operated, and the but schools can be operated conveyance pupils. and have been without 14, Chapter 41, S., 1954, R. Section section which procure superintendents convey- directs pupils. elementary says: This section ance of conveyance provided “In all cases so shall conserve comfort, safety, and welfare of the children conveyed.” conveyance, viz., Here found the reason for com- children, fort, safety exactly of the this welfare Augusta City provid- to do what the Council endeavored ing pupils. conveyance non-public for school many municipalities, fact, that includ-

It is a well-known schools, Augusta police ing at all City furnish officers schools, protect children from including parochial to crossing public high- pupils while the traffic hazards dif- ways way What is the to and from school. on their special aрpropri- spending money a ference between school, except perhaps convey parochial a ation to a child to spending money ap- expenditure, and in the amount protect parochial propriated police department, for the vicinity they children in the of the schools which school attend ? conveyance elementary ask if the school

One also protection pupils not for the of such schools is purpose specified statute, pupils, in the what other can it have? chapter in the not included of our

Supposing there was relating education, specifically pro- Statutes Revised conveyance elementary providing school vision appellants argue, if the would with de- pupils, I wonder municipality, purpose for the gree vigor, of con- children, safety school serving and welfare conveyance power provide for their did not have appropri- appropriation connected a school special ation? provided Augusta City in the ordinance Council be- consideration, conveyance for the of all ele-

fore us non-public schools, pupils pur- mentary who attend compulsory conformity with the school at- suant Maine; spelling and in of the State of out the tendance laws very ordinance, the words of reason for the Section safety Chapter viz., comfort, “to conserve the 41 were used transported. the children so and welfare” of my opinion, City Augusta, the in The charter of au- gives City enactment. The charter the of Au- thorizes this gusta, power publish acts, ordain and “to laws regulations not inconsistent with Constitution and laws good as shall be needful order of said this State body politic.” Opinion Justices, in 124 Me.

This court has said 509: granting city ordinary au- form of charter “The

thority ordinances not inconsistent with to enact a dele- and laws of State is the constitution police power.” authority gation to exercise quotation approval. opinion majority this cites may ask, which What, there in the instant ordinance is one repugnant and laws inconsistent with constitution or already Supreme seen Court have of our State? We expenditure that the contem- has said the United States presents plated by incon- no constitutional ordinance this being sistency. true, what are there on our statutes That ordinance in- make the enactment of such an books which There obvious. are none. valid? answer is dissenting opinion pointed main that there out in the It is day tendency part accord of modern courts to on municipal discretion the reasonable authorities wider police power, good nondiscriminatory exercise of faith, interest. and in the According police power? Cooley, Const. What is it is: authority establish, for the intercourse of “The body politic with each members of

the several other, good neigh- good those rules of conduct and prevent borhood a conflict calculated rights uninterrupted and to insure to each enjoyment own, reasonably far con- of his as is so others, enjoyment corresponding sistent with is usually spoken power of authority as the police. sovereignty, every nature of comprehensive a most branch This is extending every person, it does to private everything right, in the property, state, every relation in society and in life.” McQuillin III, Municipal on also Section Volume See Corporations: therefore, rule, constantly applied general “It ais the exercise of the appropriate means power police the largely within discretion rest authorities, inter- municipal not and courts will employed to an un- pose reasonable vidual and the means amount unless indi- oppressive interference with rights. property the relation Where power fairly regulation de- police is to

batable, ordinarily interfere.” will not the court McQuillin Municipal 947, III, on Volume Section Corporations. general relating Legislature laws revised 1957 the In 405, Chapter Laws 1957. municipalities. is Public This municipality provides a 3, that new statute of this Section purpose power for the of: police ordinances enact L ........ welfare; general Promoting the

A. safety.

providing for the the then incumbent Attor- this subsection In reference to prior Legislature report the en- ney General his of the law said: actment police general statement is a “This subsection welfare,’ in- ‘Promoting general tvhich

power. ‘prudential general dudes ais statement affairs’ following language the Federal Constitu- public safety,’ Along ‘providing tion. for expresses power.” general broad my opinion Augusta Council, City It is that the if it did given already power charter, have the under its was authority direct to enact the ordinance now before us for give consideration, appropriate money and to effect thereto. Chapter heading 405,

In Public Laws of 1957 under the “Municipal Finance,” by VII, 12, Section subsection a mu- given authority appropriate money nicipality to raise and operations “providing by which, authorized law by require expenditure nature, money.” gives Augusta City This section Council definite and positive legal appropriate expend warrant funds for pur- the administration of the ordinance which was enacted police power specifically delegated suant to its and author- City 3, I, Chapter ized Charter section A of supra. 405, majority opinion says Chapter 405, Public Laws revision,

of 1957 not a but mere consolidation. It re- quires only cursory study of the 1957 statute to discover simple consolidation, enactment this is not a but an important relating powers revision of the laws municipalities. 100, Chapter S., Section R. was specified purposes statute for which mu- nicipalities appropriate money could raise and and the last clause of this section read: “And for necessary other town charges.” majority opinion properly says

The that funds spent except purposes cannot be for by law; authorized using then Chapter 100, says last clause Section 91, that necessary charges” “other words town do not grant constitute a new and distinct of indefinite and un- power money purpose limited to raise whatsoever pleasure majority. Apparently at the will and aof the fact 100, 91, Chapter S., repealed by that Section R. 1954 was Chapter 405, Public Laws of 1957 was overlooked. agree thoroughly

I with the statement law to the money taxation, effect that derived from in order to be legally expended, by appro- must be made available lawful priations spent and that except funds cannot be purposes by authorized law.

However, provisions Chapter I am convinced 405, spe- cited definitely Public Laws above Augusta City cifically appropriate authorize the expend money special conveyance from fund for the pupils. appropriation by Augusta City made Council and by appellants herein, under attack appro- was a lawful priation. necessary legislature It is that the specifically by multiple purposes denote statute all of the for which a municipality may expend public raise or funds. ‍​​‌​‌‌​​​​‌​‌​​​​​‌‌​​​​​‌​​‌​‌‌‌​‌‌‌‌‌​‌‌​‌‌​​​‍Under the general police power broad by charter, accorded now Chapter confirmed Augusta Public Laws City delegated authority. Council acted within its very Legislature repealed clause, fact that the “and for other necessary charges,” town which clause has been limited in scope application, of its various decisions of this court, strong evidence Legis- was intent of the prior lature existing remove statute, any re- striction contained therein. interpretation

In the are, of statutes there course, cer- applicable rules, tain and the fundamental rule of construc- legislative tion However, intent. interpretation composite such intent opinion is but the of the individual thinking In other words the court. who constitute of those says majority means, it of the court what a means a statute for con- before us find in the statute not difficultto and is sideration, police authority legislative for exercise young safety protection power children who for private happen school, all other like who to attend rights equal ordained children in America are entitled of the United States in the Preambles of the Constitution Maine. of America and of the State of empowering statute the words case the instant In presents Interpretation plain. simple no un- thereof are argument specious Divorced difficulties. usual appropriation by special provide municipality cannot elementary conveyance attend a who children authority not included in the school, because legislative relating body education, intent of statutes and clear. is manifest support legislative authority in of the ordinance find

To question into the read words statute. do not have to we present. necessary are words All properly majority It that the concedes is assumed conveyance municipal expenditures for the authorized legal operated profit, pupils private schools, are limitations or re- and not inconsistent with constitutional expenditures not constitute di- strictions, and that such do religious operating rect aid to the sect which is such schools. Opinion very laid down this court Under rule Augusta City Justices, had 124 Me. Council police authority, power, charter in the exercise of its to en- question. act the under This au- ordinance which now strengthened by pro- thority been confirmed and has Chapter 405, visions Public of 1957. Laws pursuant ordinance, appropriation made and the power. delegated thereto, a valid exercise of legislation. suggests majority need further naught bring efforts Unfortunately will this decision elementary safety and welfare which seek to conserve nullify pupils Augusta, the laudable ef- and will school State, of our many forts of other communities conveyance of providing, objection, ele- now without non-profit pupils mentary schools. who attend plain- by the meantime, consequences, initiated In herein, a course little children. Such will descend on tiffs my of action sanction. must without Delay unnecessary. war- and authoritative Substantive already support rant of before us is law to the ordinance existence.

The bill should be dismissed.

Case Details

Case Name: Squires v. Inhabitants of City of Augusta

Court Name: Supreme Judicial Court of Maine

Date Published: May 25, 1959

Citation: 153 A.2d 80

Court Abbreviation: Me.