Mitchell v. Consolidated School Dist. , 17 Wash. 2d 61 ( 1943 )


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  • The majority opinion holds the act to be unconstitutional for the reason that it contravenes four sections of our state constitution. These sections, in the order in which they are cited, are: Art. IX, § 2; Art. IX, § 4; Art. I, § 11; and Art VIII, § 7. I shall discuss these sections in the same order.

    First. Art. IX, § 2, of the state constitution, provides:

    "But the entire revenue derived from the common school fund, and the state tax for common schools, shall be exclusively applied to the support of the common schools." (Italics mine.)

    Under the act, the school bus remains the property of the public school district, and under its management and control. Where, then, is the tangible thing received by the private or parochial school that can be said to constitute support? Let it be noted that the word used in the above section is support. The majority construe the section as if the words indirectbenefit were used instead. This leads to a conclusion exactly *Page 79 opposite to what would have been reached had the correct word been used.

    Webster's New International Dictionary gives this definition of support: "To furnish with funds or means for maintenance; to maintain; to provide for; as, to support a family." It is unnecessary to consult Webster as to the difference between the meanings of the words support and benefit.

    A religious school gets as much benefit from a city fire department as it is possible for any one to get, yet the fire department does not support the school.

    This misuse of words is the real source of the error in the majority opinion. However, I think it not improper to point out a fallacy in their logic even though the word benefit is used by them instead of the word support.

    The majority opinion concedes the constitutionality of a prior act which provided for the transportation of public school pupils to and from public schools. They hold that the instant act, which would permit pupils of private or parochial schools to ride on the public school busses, is unconstitutional. Briefly, their reasoning is based on the following chain of hypotheses: (1) That the expenditure of public school funds is inhibited by the constitution if it is a benefit to or in aid of a private or parochial school; (2) that permitting private or parochial school students to ride on a public school bus is a benefit to and in aid of the private or parochial school; (3) that the benefit to the private or parochial school is based upon the fact, assumed as a matter of law, that: (a) the transportation increases the number of pupils attending the private or parochial school, and (b) that this increase of attendance is a benefit to the school.

    They presume, as a matter of law, that transportation of the Christian school pupils in school district *Page 80 No. 201's bus would increase the enrollment of the Christian school. This must be based upon the conclusion that there are, in district No. 201, pupils, who are not attending the Christian school, who would transfer from the public school to the Christian school if they could ride in the public school bus. Though I concede its possibility, it is not a fact of which the court may take judicial notice. The only facts that may be presumed are those in favor of constitutionality.

    Upon the question of facts that touch the constitutionality of a statute, this court in State ex rel. Govan v. Clausen,108 Wash. 133, 183 P. 115, quoted with approval:

    "`If evidence was required of a fact, it must be supposed that it was before the legislature when the act was passed; and, if any special finding was required to warrant the passage of the particular act, it would seem that the passage of the act itself might be held equivalent to such finding.'"

    The concluding fallacy of their hypotheses is the erroneous presumption of fact that it is the school and not the pupils that benefit from the transportation. I rely, by analogy, on Cochranv. Louisiana State Board of Education, 281 U.S. 370,74 L. Ed. 913, 50 S. Ct. 335, in which it was held that books furnished for private schools were not granted to the schools themselves, but only to or for the use of the children.

    An erroneous rule of law has been laid down by the majority opinion: That, if the transportation of private or parochial school pupils is a benefit to the school, it is immaterial and beside the question that it is also of some benefit to the pupil. The correct rule should be: If the pupils derive a benefit from the transportation, any benefit to the private or parochial school is beside the question, unless, of course, the benefit is also a support of the school. *Page 81 Second. Art. IX, § 4, provides:

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

    The majority opinion, in citing the above, leaves us completely in the dark as to what its application to the instant case is. Unless riding in a school bus is a religious observance, I think it is safe to say that the public schools remain free from sectarian influence and control by the provisions of the act, and, since no funds are given to the private or parochial schools, this section, likewise, has no application in construing the act.

    Third. Art. I, § 11, is as follows:

    "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. . . ."

    This section has no application to the act. Manifestly, school busses have nothing to do with religion, and no property, money, credit, or thing of value is applied, granted, conveyed, or loaned to any religious establishment. Hence, no religious establishment receives any support for the reasons heretofore given.

    Fourth. Art. VIII, § 7, provides:

    "No county, city, town, or other municipal corporation shall hereafter give any money or property, or loan its money orcredit, to or in aid of any individual, association, company, or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company, or corporation." (Italics mine.)

    The act makes no provision whatever to give any school district money or property, or loan its money or credit to, or in aid of, any private or parochial school. *Page 82 The majority opinion does not and cannot point out any way in which it does.

    This section is, however, the probable source of the error in the majority logic. From it, they pick out the phrase in aid of and by using it out of its context, as if it were contained in Art. IX, § 2, instead, they arrive at the erroneous rule that, if a thing is in aid of a school, directly or indirectly, it is alsoin support of it. All that was said under the Art. IX, § 2, heading, applies here with equal force.

    Before closing my dissent, I desire to advert to a point of contention raised between appellant and respondent in their briefs that was not discussed in the majority opinion. I specifically disavow any possible inference that I think that the majority opinion turned upon the following point. I quote respondent's brief, page 32:

    "Appellants admit (Br. page 27) that furnishing all transportation for public school children is `legally in support of the common schools' and proceeds to argue that the private, or parochial school child has a right to `on a parity with his public school brother avail himself at the common school of anyother facilities offered therein.'

    "With this statement we have no controversy, for it is admitted that if the private or parochial school child attends the commonschools he is entitled to transportation thereto."

    The necessary inferences from respondent's contention are that a pupil must be enrolled exclusively in a public school as a prerequisite to the enjoyment of public school facilities; that unless the pupil uses all the facilities of the public school, he or she is ineligible to use any. In short, that the pupil is put to an all, or nothing, election. Respondent cites no constitutional authority for this and none can be cited. Certainly it is not supported by Art. IX, § 1, of the state constitution which provides: *Page 83

    "It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex."

    Yet, respondent says to the pupil in effect, "Give up your religious training secured in the private school, or you may not ride on the public school bus." In contrast with this, the court in Chance v. Mississippi State Textbook Rating PurchasingBoard, 190 Miss. 453, 200 So. 706, said:

    "In furnishing vaccine for its diseased, shelter for its needy, care for its insane, uniforms for its militia, and protection against `acts injurious to morals,' the state recognizes needs that are physical, material, mental and moral, and recognizes them with a gaze which throws out of focus any credal background. Even as there is no religious qualification in its public servants for office, there should be no religiousdisqualification in its private citizens for privileges availableto a class to which they belong." (Italics mine.)

    Indeed, it has been held in Commonwealth ex rel. Wehrle v.Plummer, 21 Pa. Dist. 182, that pupils of a private sectarian school, who are personally qualified and reside in a school district, which maintains, as an integral part of its public school system, a manual training school, may not be deprived of admission to such manual training school by reason of the fact that their elementary or academic education has been, or isbeing, received in a school other than a public school. It was held in Commonwealth ex rel. Wehrle v. School District ofAltoona, 241 Pa. St. 224, 88 A. 481, that a manual training school, conducted in the common schools, but maintained as an additional department under a statute opening such additional departments to private as well as public school children, cannot refuse admission to a private school pupil, the court saying: *Page 84

    "If it be admitted that it is the climax of the manual training received in the elementary public school, there is no more reason for excluding this applicant from its benefits because he is notmatriculated in such elementary school than there would be for excluding him from the public school because he had not qualified for admission to it in the elementary public schools." (Italics mine.)

    Of course, public school authorities may prescribe rules and regulations for schools. The legislature may do likewise and has, in fact, done so by the passage of this act in question. But certainly no inhibitions can be found in either the state or Federal constitution that would prevent a pupil, in accordance with a legislative enactment, from being a part time pupil, attending the day school and not the night school or viceversa, partaking of the school hot lunch without riding on the school bus, or vice versa, and taking fewer courses than the entire high school curriculum; or enjoying equally, with everyother pupil, any one or more of the facilities of the publicschool which continue to remain a part of the public schoolentity, without any qualification of exclusive enrollment or theforbearance of private or parochial school attendance.

    If the presumption of the constitutionality of this act is to be overcome, it must be upon some theory other than the supportof parochial schools, or the all or none election, theories.

    The judgment should be reversed.

    May 19, 1943. Petition for rehearing stricken. *Page 85

Document Info

Docket Number: No. 28898.

Citation Numbers: 135 P.2d 79, 17 Wash. 2d 61

Judges: BLAKE, J.

Filed Date: 3/15/1943

Precedential Status: Precedential

Modified Date: 1/13/2023