Rawlings v. Butler

290 S.W.2d 801, 60 A.L.R. 2d 285

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: February 10, 1956
• Status: Published

Opinions

SIMS, Judge.

This appeal is from a judgment of the Franklin Circuit Court denying an injunction and dismissing the complaint. J. C. Rawlings, as a citizen and taxpayer of Marion County, brought this class action against Wendell P. Butler, Superintendent of Public Instruction in Kentucky, and the Boards of Education of Casey, Marion, Washington, Nelson, Meade and Grayson Counties, in which he questioned on constitutional grounds the right of the State Superintendent áñd of the respective Boards of Education to expend public tax money in the payment of the salaries of nuns of the Roman Catholic Church teaching in the public schools of these counties when dressed in religious garb and wearing symbols of their religion; as well as the payment of rent to the Catholic Church for buildings in which public schools are taught; and the cost of transporting Catholic children to parochial schools. An injunction was asked against appellees to prevent them from this averred illegal expenditure of public funds raised by taxation, and of school funds.

The case was tried before the court upon a stipulation which showed these facts. The Sisters are. all members of orders or religious communities within the Roman Catholic Church and each recognizes the Pontiff of that church as her spiritual superior. She lives and teaches under her religious name, and regularly turns over her compensation as a teacher, after deducting' living expenses, to her order or religious community. “She has assumed the religious relationship peculiar to her order, and has taken a vow of chastity, poverty, and obedience as hereafter defined. She owes obedience to the superiors of her order in spiritual matters; the reference to ‘poverty’ means that each sister delegates to some other person the right to control and manage any property which she might own.”

It is further stipulated, “These Sisters, at all times during their teaching services, wear clothing similar to the following: ‘The Dominican Sisters’ Habit comprises a tunic and scapular of white wool. The tunic is girded with a leather belt to which is attached a rosary. The head is covered with a veil, a guimpe and a white linen headband. A mantle of black wool is worn when traveling.’ ”

The stipulation shows that the various County School Boards involved have the following number of Sisters teaching in their public, tax-supported .schools: “Casey County, 2 Sisters; Marion County, 43 Sisters; Washington County, 9 Sisters; Nelson County, 13 Sisters; Meade County, 14 Sisters; Grayson County, 3 Sisters.”

It is stipulated the school hoards of these counties conduct public schools in properties owned by the Catholic Church and rented to the hoards at the following prices : “Casey County — 1 building — rent free; Washington County — 1 building — rent free; Marion County- — various rooms — $75 per room per year; Nelson County — 1 building — $900 per year; Meade County — 1 building — $32 per year and 1 building— $200 per year; Grayson County — 1 building —$2400 per year.”

That part of the stipulation relating to the transportation cost of children shows the Nelson County Board of Education expended for transportation of pupils during the school year 1953-1954 a total of $66,-198.13, including a depreciation of 10% on school buses, amounting to $7,372.94; that parochial pupils are 19.1 per cent and public school pupils are 80.9 per cent of the total number of pupils transported; that the Nelson County Fiscal Court for that school year appropriated $10,000 to the County School Board under KRS 158.115 for the transportation of elementary pupils of parochial schools; that the school buses travel a total of 1,731.5 miles per day in picking up all students in Nelson County, witn a total of 1,568 stops made per day, of which 222 stops are for parochial students only; that the total mileage occasioned by picking up parochial students only is 23.1 miles.

At the outset of his brief appellant explains he does not question the scholastic standards or the moral qualifications of the • Sisters to teach in public schools; and he does not question the right of the “ordinary Roman Catholic citizen to teach in our free public schools.” Nor does appellant contend the Sisters teach the tenets of the Catholic Church. His sole objection to their teaching is based upon the fact they wear their religious garb and emblems in the classrooms and donate their compensation to their respective religious orders after the payment of their living expenses.

The framers of the Federal Constitution, as well as the authors of the Constitutions of the various States, were careful “to preserve and perpetuate religious liberty, and to guard against the slightest * * * inequality in the civil and political rights of citizens, which shall have for its basis only their, differences of religious belief. * * * The general voice has been, that persons of every religious persuasion should be made equal before the law, and that questions of religious belief and religious worship should be questions between each individual man and his Maker.” 2 Cooley’s Const.Lim. 8 Ed. p. 960.

Judge Cooley further wrote, “Those things which are not lawful under any of the American Constitutions may be stated thus: * * * Compulsory support, by taxation or otherwise of religious instruction. Not only is no one denomination to be favored at the expense of the rest, but all support of religious instruction must be. entirely voluntary. It is not within the sphere of government to coerce it.” 2 Cooley’s Const.Lim. 8 Ed. pp. 966, 967.

Article 6 arid the First Amendment of the Federal Constitution and §§ 1 and 5 of the. Kentucky Constitution guarantee religious freedom to the citizens of this Commonwealth; while §§ 171 and 189 of our Constitution forbid the use of money raised by taxation for public purposes, or for educational purposes, to be used in the aid of any church, sectarian or denominational school.

While the dress and emblems worn by these Sisters proclaim them to be members of certain organizations of the Roman Catholic Church and that they have taken certain religious vows, these facts do not deprive them of their right to teach in public schools, so long as they do not inject religion or the dogma of their church. The garb does not teach. It is the woman within who teaches. The dress of the Sisters denotes modesty, unworldliness and an unselfish life. No mere significance or insignificance of garb could conceal a teacher’s character. Her daily life would either exalt or make obnoxious the sectarian belief of a teacher.

Our General Assembly has not yet prescribed what dress a woman teaching in the public schools must wear, or whether she may adorn herself with a ring, button, or any other emblem signifying she is a member of a sorority. These Sisters are not teaching religion in the public schools or attempting to' force their religious views on the pupils under their charge. The religious views of these Sisters and their mode of dress are entirely personal to them. If they were prevented from teaching in the public schools because of their religious beliefs, then they would be denied equal protection of the law in violation of the Fourteenth Amendment of the Federal Constitution. Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213.

The question of the garb worn by Roman' Catholic Sisters while teaching was before the Supreme Court of Pennsylvania in 1894 in Hysong v. Gallitzin Borough School District, 164 Pa. 629, 30 A. 482, 26 L.R.A. 203, 44 Am.St.Rep. 632, and before the Supreme Court of North Dakota 42 years later in Gerhardt v. Heid, 66 N.D. 444, 267 N.W. 127, and before the Supreme Court of Indiana in. 1940 in State ex rel. Johnson v. Boyd, 217 Ind. 348, 28 N.E.2d 256, and we have reached the same conclusions those courts did. In answer to the argument in briefs for appellant that the garb of the Sisters within itself impresses on the children the religious faith of its wearer, we quote from the HysOng opinion, at page 484 of 30 A.:

“The religious belief of teachers and all others is generally well known to the neighborhood and to pupils, even if not made noticeable in the dress, for that belief is not secret, but is publicly professed. Are the courts to decide that the cut of a man’s coat or the color of a woman’s gown is sectarian teaching, because they indicate sectarian religious belief? If so, then they can be called upon to go further. The religion of the teacher being known, a pure, unselfish life, exhibiting itself in tenderness to the young, and helpfulness for the suffering, necessarily tends-to promote the religion of the man or woman who lives it. Insensibly, in both young and old, there is a disposition to reverence such a one, and at least, to some extent, consider the life as the fruit of the particular religion. Therefore, irreproachable conduct, to that degree, is sectarian teaching. But shall the education of the children of the commonwealth be intrusted only to those men and women who are destitute of any religious belief?”

Appellant relies upon O’Connor v. Hendrick, 184 N.Y. 421, 77 N.E. 612, 7 L.R.A.,N.S., 402, 6 Ann.Cas. 432, and Berghorn v. Reorganized School District, 364 Mo. 121, 260 S.W.2d 573. In the Gerhardt opinion the North Dakota Supreme Court expressly held the O’Connor case was not controlling because the Superintendent of Public Instruction of New York had implied statutory authority to prohibit teachers in public schools from wearing distinctive religious garb while teaching. It was held in the O’Connor opinion that forbidding nuns to teach in public schools while attired m: religious garb was a valid exercise of the statutory right of the Superintendent. North Dakota had no statute regulating the dress of . school teachers, nor has Kentucky.

In the amicus curiae brief of the American Civil Liberties Union reliance is placed in Zellers v. Huff, 55 N.M. 501, 236 P.2d 949. But this opinion has no application here as it, like the O’Connor case, dealt with a 'regulation forbidding the wearing of distinctive church garb while teaching in the public schools. See 236 P.2d 964 for that part of the Zellers opinion dealing with this point. Nor can we agree with the contention of the amicus curiae that the doctrine of the Hysong case, as reiterated in the Gerhardt and the Boyd opinions, has been superseded or abrogated by Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, 168 A.L.R. 1392, and People of State of Ill. ex rel. McCollum v. Board of Education, etc., 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649, 2 A.L.R.2d 1338.

The Everson opinion sustained the New Jersey Court of Errors and Appeals in holding constitutional an Act of the New Jersey Legislature, N.J.S.A. 18:14 — 8, authorizing the payment of tax money for the transportation of children to a Catholic School, 133 N.J.L. 350, 44 A.2d 333. This Everson opinion has no bearing on the question of Sisters teaching in schools while wearing their habiliments.

The McCollum opinion held there was a violation of the First Amendment of the Federal Constitution by a practice of the Board of Education in releasing children, at the request of their parents, from classes to receive sectarian instruction in the school building by churchmen of their particular faith; while other children, whose parents did not desire them to take religious instruction, were kept in their classes. The court, seemed to base its opinion on the fact that as Illinois has a compulsory school attendance law, the various denominations giving sectarian instructions to children in a school building were receiving aid from the State in so doing. Again, we say this opinion does .not abrogate the doctrine expressed in the Hysong case.

It is rather interesting to note that in Zorach v. Clauson, 343.U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954, a case practically identical in facts with the McCollum case except the children on “released tim.e” received their religious instruction outside the school, the majority held the First Amendment of the Federal Constitution was not violated. Mr. Justice Black, who wrote the majority opinion in the McCollum case, dissented on the theory that religious teaching was receiving some aid from the State, since the compulsory attendance law channeled the pupils into the hands and made them more accessible to those desiring to, give them sectarian training, regardless of whether religion was taught in or out of the school building.

Mr. Justice Reed, in dissenting in ■ the McCollum case, called attention to the fact that there were chaplains of various faiths in the United States armed services; in both Houses of Congress; in the United States Military Academy and in the Naval Academy; and under the Servicemen’s Readjustment Act of 1944, 38 U.S.C.A. § 693 et seq., eligible veterans may receive training at government expense for the ministry in denominational schools; yet it could not with reason be said that the United States in so doing is diverting tax money to the aid of religion.

We agree with what Mr. Justice Jackson said in his concurring opinion in the Mc-Collum1 case. It is next to impossible to teach history or literature without referring to the roles religion has played in the tragedy of mankind. He further states there are 256 separate 'and substantial religious bodies in this country and if we are to eliminate everything that is objectionable to any of these warring sects, or that which is inconsistent with their doctrines, “we will leave public education 'in shreds.” [333 U.S. 203, 68 S.Ct. 477.]

An exhaustive treatment of this subject by Professor C. M. Hudspeth appears in 33 Texas. Law Review 1035. He closes his discussion with this statement: “Americans are almost unanimous in their advocacy of separation of church and state * * * ;. they differ only concerning its ■ application.”

The Berghorn case, 364 Mo. 121,260 S.W. 2d 573, upon which’ appellant leans heavily, is easily distinguished from the one here. There, no federal constitutional question was involved and the decision was based upon certain sections of the Missouri Constitution which are quite different from ours. Also, the facts in the Berghorn case are much different from those in the case at bar. The Missouri case shows that in some instances the nuns lived in the schools, which were surmounted by crosses; religious holidays were observed; religious instruction was given in some of the schools; and acolytes, or altar boys, were excused during school hours to attend weddings and funerals in the adjoining church. In effect, several of the schools involved in the Berg-horn case were in reality Catholic schools rather than public schools with Catholic Sisters teaching in them.

We reach a more difficult question under § 189 of our Constitution: “No portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school.”

The United States Supreme Court in the Slaughter-House Cases, 16 Wall. 36, 127, 83 U.S. 36, 127, 21 L.Ed. 394, 425, wrote that labor is property and one has the right to dispose of property according to the will of the owner. The salaries paid these Sisters are theirs and they may do therewith as they choose. One employed by the state or any of its subdivisions is not forbidden under § 189 from contributing any part, or all, of the salary earned to a religious body of which he or she is a member. To deny such right of contribution would be a denial of religious liberty. Hysong v. Gallitzin Borough School District, 164 Pa. 629, 30 A. 482, 26 L.R.A. 203, 44 Am. St.Rep. 632; Gerhardt v. Heid, 66 N.D. 444, 267 N.W. 127, 135; State ex rel. Johnson v. Boyd, 217 Ind. 348, 28 N.E.2d 256.

From the stipulation in the record it appears the Sisters are paid like other teachers, and after providing for their living expenses, they contribute the balance of their compensation to the orders to which they belong. Their vow of poverty is not controlling from a legal angle. Many people are poverty stricken without taking such vows. The vow of obedience to ecclesiastical and secular authorities is not uncommon in the lives of people. No one can object to the vow of chastity. In Zellers v. Huff, 55 N.M. 501, 236 P.2d 949, at page 962, it was held there was no violation of the New Mexico Constitution, forbidding public funds to be used for the support of a church, when the Sisters turned over to the Catholic Church their compensation received as teachers after deducting actual living expenses. However, we would have a different question if these Sisters were but the conduits through which public school funds are channeled into the coffers of the Catholic Church. Then § 189 could be violated. But where the Sisters are paid separately and endorse their own checks, then they may dispose of their earnings as they desire.

We can see no constitutional objection to the various county school boards concerned in this litigation renting buildings from the Catholic Church in which to conduct schools, since the church In no manner attempts to influence or control the way the schools are conducted or operated or how they are taught. This question was disposed of contrary to appellant’s contention in Crain v. Walker, 222 Ky. 828, 2 S.W.2d 654, at page 659. It was there written it was not the intention of § 189 to withhold the right to teach school in buildings rented from any particular religious denomination where that denomination did not attempt to influence or exercise any control over the school or how it was taught. From what is said in the Crain opinion on page 659 of Williams v. Board of Trustees, 173 Ky. 708, 191 S.W. 507, L.R.A.1917D, 453, it is evident that the facts in the Williams'case distinguish it from the one at bar. In Kentucky Building Commission v. Effron, 310 Ky. 355, 220 S.W.2d 836, at page 838; wé said § 5 of our Constitution was not violated 'when funds were given to a hospital carrying the name of a religious denomination and governed by a board whose members were of a particular faith, in the event the hospital received patients regardless of faith or creed.

Here, the fact that two of the buildings were furnished free of rent by the Catholic Church and another was rented to the School Board for the nominal sum of $32 per year, does not affect the constitutional question so long as the church does not attempt to exercise any dominion or control over the school or classes taught therein and the Board has full and complete control of the buildings throughout the school year.

The stipulation does not show the buildings rented to the school boards by the church were under the same roof as the church or church school, or were immediately adjoining the church or the priest house, or that the nuns resided in the buildings rented to the county school boards, or that these buildings had religious emblems on them. The facts in the Berghorn case, 364 Mo. 121, 260 S.W.2d 573, 576, show such conditions did exist in Missouri. And it seems that practically the same conditions existed in New Mexico as in Missouri, because in the Zellers opinion, 55 N.M. 501, 236 P.2d 949, it is written on page 954, “In short, New Mexico had a Roman Catholic school system supported by public funds within its public school system.” The record before us does not show the Catholic Church attempted in any way to influence the teaching in the schools conducted in the buildings and rooms rented from it, or attempted to exercise any dominion over these schools. So far as this record shows, they were conducted in the same manner as other public schools in the respective counties.

We find no provisions of the Federal Constitution or of the Kentucky Constitution which are violated by the Sisters teaching while wearing religious garb and emblems, or in donating to their religious orders the lion’s share of their salaries, or in the -various school boards renting buildings from the Roman Catholic Church in which public schools are conducted. As the circuit court so held, this part of its judgment is affirmed.

This court held unconstitutional an Act of the General Assembly of 1940, c. 66, allowing school boards in. the State to expend school money in the transportation of children to secular or private schools. Sherrard v. Jefferson County Board of Education, 294 Ky. 469, 171 S.W.2d 963. At its 1944 session the General Assembly passed a bill, c. 156, permitting fiscal courts to contribute tax money to supplement the school bus transportation of all children attending primary grades who do not.live within reasonable walking distance of their school. In Nichols v. Henry, 301 Ky. 434, 191 S.W.2d 930, 168 A.L.R. 1385, we upheld the constitutionality of this 1944 Act as one not designed to aid secular or private schools, but to protect all children from the hazards of the highway who under our compulsory attendance law were forced to attend school. It is patent that under the Sherrard opinion the School Board of Nelson County cannot use money raised by taxation for school purposes to aid in the transportation of children attending parochial or private schools. And it is just as plain under the Nichols opinion that the fiscal court may under KRS 158.115 bear the expense of transporting children attending parochial or private schools.

The complaint avers Nelson County Board of Education illegally expended between $3,000 and $5,000 for the transportation of parochial students during the school year in question. ..Appellant in his brief argues that this sum calculated under paragraph 10 of the stipulation (which deals with the cost of operating school buses) is $2,643.84 and asks that the ■ Board be enjoined from 'using school funds in helping defray the expense of transporting parochial students. It is manifest if the fiscal court contributed sufficient funds to bear this extra cost of transportation, no person can complain; but if its contribution does not take care of this extra expense, the Board cannot make up the deficit by expending any of its school funds. The Nelson County Board asks us not to apply the “per capita” construction to paragraph 10 of the stipulation in arriving at the additional cost of transporting parochial students, but to arrive at it on the basis of the costs of extra buses which may be required in their transportation, or to arrive at this sum by the additional cost to the Board in operating its buses in picking up parochial students. Inasmuch as practically all school funds are distributed upon a “per capita” basis, and as most school expenses are determined upon such basis, we feel constrained to adopt the “per capita” method in determining this additional cost of transportation.

In the instant case this additional cost is 19.1 per cent of the total cost of the school bus system of Nelson County as the Catholic children equal 19.1 per cent and the children attending the public schools equal 80.9 per cent of all children transported to school in Nelson County. Should any peculiar or unusual circumstances exist which show the “per capita” method would not accurately or fairly reflect this additional cost of transportation, such circumstance may be taken into consideration in applying the “per capita” method in arriving at this additional cost.

As the ■ Nelson County Fiscal Court was not a party to the action, the circuit court properly decided it was without jurisdiction to determine the constitutionality of the fiscal court’s. appropriation. However, the Nelson County Board of Education was before the court, and the trial judge should have determined whether or not it expended school funds in the transportation of parochial students.

The judgment must be reversed for the trial court’s failure to determine what, if any, sum the school board improperly expended in transporting parochial students. In so doing the trial judge will apply to paragraph 10 of the stipulation the rule set out in this opinion, and either party may introduce proof as to any unusual facts or circumstances affecting this cost. We suggest that the Nelson County Fiscal Court be made a party to the action upon its return to the circuit court so that it may be bound by any judgment rendered. In all other respects the judgment is affirmed.

The judgment is affirmed in part and reversed in part.

HOGG, J., dissents.