Mitchell v. Consolidated School District No. 201

135 P.2d 79, 17 Wash. 2d 61

• Court: Washington Supreme Court
• Decided: March 15, 1943
• Docket: No. 28898.
• Status: Published

Opinions

Blake, J.

Plaintiff, a resident and taxpayer of consolidated school district No. 201, in Island county, brought this action under the uniform declaratory judgments act (Rem. Rev. Stat. (Sup.), §§ 784-1 to 784-15 [P. C. §§8108-21 to 8108-35], inclusive), praying for judgment declaring chapter 53, Laws of 1941, p. 120 (Rem. Supp. 1941, §§ 4776a, 4776b), unconstitutional. Defendants interposed a demurrer to the amended complaint. The court overruled the demurrer, and, upon defendants’ election to stand on it, entered judgment declaring chapter 53, Laws of 1941, unconstitutional and enjoining defendants from expending public funds pursuant to its terms. Defendants appeal.

The act is entitled:

“An Act relating to the health, welfare and safety of children attending elementary schools and high school in accordance with the laws of this state; and providing for the transportation of school children attending private or parochial schools in all cases wherein provision for transportation of children attending public schools has been made.”

In § 1, the legislature declares that its intent is to exercise the police power of the state; and that the purpose of the act is to avoid and minimize the accidents and traffic hazards to which children of school age are subjected in “attending elementary schools and high schools in accordance with the laws of this state.”

Section 2 of the act provides:

“Whenever any district school board shall, pursuant to any laws of the State of Washington, provide transportation for pupils attending public schools, all children attending any private or parochial school under the compulsory school attendance laws of this state shall, where said private or parochial school is along or near the route designated by said board, be entitled equally to the same rights, benefits and privileges as to transportation as are so provided for by such district school board for pupils attending public schools.”

The facts set out in respondent’s amended complaint, upon which he invokes the jurisdiction of the court under the declaratory judgment act, are, in substance, as follows: That, pursuant to chapter 53, Laws of 1941, the directors of the school district are using public funds “from the state permanent school fund and the current school fund” (italics ours) for the transportation, in a school bus, of children eligible to attend the common public schools to and from the Christian school; that the Christian school is located in district No. 201; that it is a privately owned and operated sectarian or parochial school maintained and controlled by a church denomination or religious sect; that the religious tenets of such sect are taught as a part of the regular curriculum of the school; and that the school is not a part of the public school system of the state, nor is it under the control of the voters of the school district or their representatives, the directors.

Preliminary to a discussion of the constitutional question presented, it may be well to observe that the demurrer admits the facts alleged in the amended complaint; that, upon the facts alleged, respondent, as a taxpayer residing in the district, has a right to maintain the action (Dirks v. Collin, 37 Wash. 620, 79 Pac. 1112; Shanstrom v. Case, 103 Wash. 672, 175 Pac. 323; Barnett v. Lincoln, 162 Wash. 613, 299 Pac. 392; Sasse v. King County, 196 Wash. 242, 82 P. (2d) 536); that the facts alleged are sufficient to invoke the jurisdiction of the court under the declaratory judgment act (Johnson v. State, 187 Wash. 605, 60 P. (2d) 681, 106 A. L. R. 237; Acme Finance Co. v. Huse, 192 Wash. 96, 73 P. (2d) 341, 114 A. L. R. 1345; McDermott v. State, 197 Wash. 79, 84 P. (2d) 372); and that the police power—broad and comprehensive as it is—may not be exercised in contravention of plain and unambiguous constitutional inhibitions. (2 Cooley’s Constitutional Limitations (8th ed.), p. 1229; Jacobson v. Massachusetts, 197 U. S. 11, 25, 49 L. Ed. 643, 25 S. Ct. 358; State ex rel. Richey v. Smith, 42 Wash. 237, 84 Pac. 851, 5 L. R. A. (N.S.) 674; Wright v. Hart, 182 N. Y. 330, 75 N. E. 404, 2 L. R. A. (N.S.) 338.)

Among other constitutional inhibitions which respondent invokes against the act are Art. IX, § 2 and § 4, and Art. I, § 11. Section 2 of Art. IX provides:

“The legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established. But the entire revenue derived from the common school fund, and the state tax for common schools, shall he exclusively applied to the support of the common schools.” (Italics ours.)

Section 4 of Art. IX provides:

“All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.”

Among other provisions, § 11 of Art. I contains the following:

“No public money or property shall be appropriated for or applied to- any religious worship, exercise, or instruction, or the support of any religious establishment.”

In face of these constitutional provisions, it would seem too clear for argument that the act (chapter 53, Laws of 1941) transcends the police power of the legislature. Giving the act its fullest import, it is nothing more nor less than a mandate to the directors of public school districts in which busses are operated for the transportation of pupils to and from public schools to carry children to and from private schools.

Appellants argue that the requirement of the act does not impose any additional expense upon the school district, inasmuch as pupils in private schools are required to present themselves for transportation upon the route over which the bus is regularly oper ated for the transportation of pupils in public schools. It would seem sufficient answer to this argument to say that it is alleged in the amended complaint that common school funds are being used for the transportion of pupils to and from the Christian school, and that such school is a sectarian institution. The facts alleged are admitted by the demurrer.

But, aside from this, it is too apparent to be denied that, for every pupil carried, there is an additional expense to the school district. For each pupil, the cost of actual transportation may be slight. Whether the expense be small or great, is, of course, no justification for the use of common school funds for other than common school purposes. It is apparent, however, that, in the aggregate, the burden imposed on the common school fund by chapter 53, Laws of 1941, is very substantial. It was stated in argument upon the first, hearing of the case in this court that there are twenty-four thousand pupils attending private and parochial schools in this state. It hardly seems debatable that merely the daily cost of transportation of such a number of pupils would be a heavy drain on the common school fund—to say nothing of the necessary investment of funds in additional equipment to provide transportation for them.

The act does not make a specific appropriation of school funds for carrying out its purpose. But, to carry out its purpose, the directors of school districts must, of necessity, resort to the common school fund. As such, they have no other resource. It is clear that the act contravenes Art. IX, § 2, of the constitution in that it necessitates the use of common school funds for other than common school purposes.

We think it equally clear that it contravenes Art. IX, § 4, and Art. I,. § 11, unless it may be said that the transportation of pupils to and from the Christian school is of no benefit to the school itself. Appellants endeavor to uphold the act.upon that qualification, contending that the transportation of pupils to and from the school inures exclusively to the benefit of the pupils and their parents, in that it simply relieves them from the obligation incident to compulsory attendance statutes of providing transportation themselves. Conceding validity to the argument, it runs afoul of another constitutional inhibition: Art. VIII, § 7, which provides that “No county, city, town or other municipal corporation shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, . . . except for the necessary support of the poor and infirm, . .

We cannot, however, accept the validity of the argument that transportation of pupils to and from school is not beneficial to, and in aid of, the school. Even legislation providing for transportation of pupils to and from public schools is constitutionally defensible only as the exercise of a governmental function furthering the maintenance and development of the common school system. Const. Art. IX. Lanphier v. Tracy Consol. School Dist., 224 Iowa 1035, 277 N. W. 740, 118 A. L. R. 801, and annotation p. 806 et seq.; Consolidated School Dist. No. 1 v. Wright, 128 Okla. 193, 261 Pac. 953, 56 A. L. R. 152; State ex rel. Van Straten v. Milquet, 180 Wis. 109, 192 N. W. 392. See, also, State ex rel. School Dist. No. 56 v. Superior Court, 69 Wash. 189, 124 Pac. 484; Howard v. Tacoma School Dist. No. 10, 88 Wash. 167, 152 Pac. 1004, Ann. Cas. 1917D, 792.

The argument advanced by appellants here was met and refuted by the court in Judd v. Board of Education, 278 N. Y. 200, 211, 15 N. E. (2d) 576, 118 A. L. R. 789:

“The argument is advanced that furnishing transportation to the pupils of private or parochial schools is not in aid or support of the schools within the spirit or meaning of our organic law but, rather, is in aid of their pupils. That argument is utterly without substance. Free transportation of pupils induces attendance at the school. The purpose of the transportation is to promote the interests of the private school or religious or sectarian institution that controls and directs it. ‘It helps build up, strengthen and make successful the schools as organizations’ [citing cases]. Without pupils there could be no school. It is illogical to say that the furnishing of transportation is not an aid to the institution while the employment of teachers and furnishing of books, accommodations and other facilities are such an aid. In the instant case, $3,350 was appropriated out of public moneys solely for the transportation of the relatively few pupils attending the specific school in question. If the cardinal rule that written constitutions are to receive uniform and unvarying interpretation and practical construction is to be followed, in view of interpretation in analogous cases, it cannot successfully be maintained that the furnishing of transportation to the private or parochial school out of public money is not in aid or support of the school.”

We think the conclusion is inescapable that free transportation of pupils serves to aid and build up the school itself. That pupils and parents may also derive benefit from it, is beside the question.

Appellants stress certain decisions upholding legislation under which free text books are furnished to pupils attending parochial schools. We think it unnecessary to discuss these decisions further than to say that authority is divided on the subject. See Judd v. Board of Education, supra. For we think chapter 53, Laws of 1941, so clearly contravenes Art. I, § 11, and Art. IX, § 2 and § 4, that decisions from other courts on the related subject can be accorded no weight. Particularly must this be so in light of the fact that the identical question now before us has been passed upon by the courts of Delaware, New York, Oklahoma, and Maryland. State ex rel. Traub v. Brown, 36 Del. 181, 172 Atl. 835 (writ of error dismissed by supreme court 39 Del. 187, 197 Atl. 478); Judd v. Board of Education, supra; Gurney v. Ferguson, 190 Okla. 254, 122 P. (2d) 1002; Board of Education of Baltimore County v. Wheat, 174 Md. 314, 199 Atl. 628. In the Traub, Judd, and Gurney cases, the acts under consideration were held to contravene constitutional inhibitions no more explicit than ours. The supreme court of Wisconsin, construing a somewhat dissimilar statute, held that, under a constitutional provision much less explicit than ours, public funds could not be used for transportation of pupils attending private schools. State ex rel. Van Straten v. Milquet, supra.

In the Wheat case, however, the supreme court of Maryland upheld a statute of similar import to chapter 53, Laws of 1941, as a valid exercise of the police power. Were the decision not in lone minority, we should be unable to follow it for the reason indicated earlier in this opinion: That the police power cannot be exercised in contravention of plain and unambiguous constitutional inhibitions.

Judgment affirmed.

Simpson, C. J., Millard, and Steinert, JJ., concur.