Snyder v. Town of Newtown

Decision Date31 May 1960
Citation147 Conn. 374,161 A.2d 770
CourtConnecticut Supreme Court
PartiesFrancis H. SNYDER et al. v. TOWN OF NEWTOWN et al. Supreme Court of Errors of Connecticut

Philip Reich, Bridgeport, with whom was George Balter, Bridgeport, for plaintiffs.

James J. O'Connell, Bridgeport, with whom were Thomas J. Dolan, Bridgeport, and, on the brief, Albert L. Coles, Bridgeport, for defendants John M. Ross et al.

Henry F. Cooney, Hartford, for defendants Sarah J. Holian et al.

Before BALDWIN, C. J., and KING, MURPHY, MELLITZ, and SHEA, JJ.

BALDWIN, Chief Justice.

This action for a declaratory judgment and injunctive relief was brought in September 1958, and was reserved upon stipulated facts for the advice of this court. The plaintiffs challenge the constitutionality of what is now General Statutes, § 10-281, concerning transportation for pupils in nonprofit private schools. 1 The statute, so far as the facts here are concerned, purports, in subsection (a) to empower a municipality to provide transportation for pupils attending a nonprofit private school as well as for those attending public school, if the majority of the children attending the private school are from the municipality. Any municipality which was providing such transportation on October 1, 1957, the date the act went into effect, may continue to do so until a vote taken pursuant to subsection (b) of the act determines otherwise. Subsection (b) provides that upon the petition of at least 5 per cent of the electors on the last completed registry list of the municipality, the question whether transportation shall be furnished to private school pupils shall be submitted to a special meeting of the electors and, if a majority approves, the transportation shall be furnished as of the beginning of the next fiscal period of the municipality.

The stipulation and the admitted allegations of the complaint disclose the following facts: The plaintiffs are electors, citizens and resident taxpayers of the town of Newtown, which in September, 1958, had a population of approximately 9500 people and an area of approximately sixty square miles. Its fiscal year begins on October 1. Its total revenue for the year ending September 30, 1958, was approximately $750,000. There were, on October 1, 1958, 1487 pupils in the public schools, including the high school. St. Rose's Roman Catholic Elementary School, a private parochial school, is not conducted for profit. It is under the control and supervision of the ministry of the Roman Catholic Church, and the pupils are instructed in Roman Catholic tenets and doctrines. The canons of the Roman Catholic Church provide, in substance, that Roman Catholic children shall be taught nothing contrary to the Catholic faith and good morals and that religious and moral training shall occupy the principal place in the school curriculum. In the elementary schools, the children must, in accordance with their age, be instructed in Christian doctrine, and the young people who attend the higher schools must receive a fuller religious training by priests conspicuous for their zeal and learning. Roman Catholic children are not allowed to attend non-Catholic schools except under circumstances and safeguards determined by the bishop of the diocese. St. Rose's School first opened on September 3, 1958, with 217 pupils, all from Newtown. As of June, 1959, there were four grades. The pupils are instructed by nuns. The school is accredited under the rules and regulations of the state board of education. See General Statutes, §§ 10-4, 10-184, 10-188. Attendance at St. Rose's School satisfies the requirements of General Statutes, § 10-184, which allows a child to attend a school other than a public school if he receives 'equivalent instruction in the studies taught in the public schools,' and § 10-188, which requires the teachers of private schools to keep registers of attendance and to make reports and returns similar to those received from the public schools. There is no other nonprofit private school in Newtown in which the majority of the children come from Newtown.

On October 1, 1958, 1413 pupils were being transported to the public schools in Newtown and 271 to St. Rose's School. The busses used were privately owned and were operated under a contract with the town board of education. The superintendent of schools established the routes. The regulations concerning transportation by school bus took into consideration the age of the pupils and the distance between their homes and the schools they attended. The regulations obviously sought to avoid the hazards of highway traffic to pedestrians and to assist the children in getting to school in inclement weather. The routes proceed along heavily traveled state highways and state-aid and town roads where there are few sidewalks. They traverse sparsely settled rural areas as well as residential areas and business districts. The pupils attending the public schools and St. Rose's School share the same busses and have the same hours for school and the same school days. The cost of the transportation is paid from the general fund of the town, which includes moneys derived from property taxes, the school fund, and fees, licenses and permits. The furnishing of transportation to the pupils of St. Rose's School causes some additional expense to the town. The electors of Newtown had, on August 16, 1958, approved the supplying of this transportation, and it began on October 1, 1958.

In Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, the Supreme Court of the United States had before it a New Jersey statute, N.J.S.A. 18:14-8, which authorized district boards of education to make rules and contracts for the transportation of children to and from schools other than private schools operated for a profit. The boards provided reimbursement to parents for the fares paid to public carriers for transportation of children attending public and parochial schools. A divided court decided that the expenditure of tax-raised funds thus authorized was for a public purpose; that the statute did not violate the first amendment to the federal constitution, which prohibits any 'law respecting an establishment of religion' and is made applicable to the states by the fourteenth amendment; and that the statute did not violate the due process and equal protection clauses of the fourteenth amendment. Whether the exclusion of children attending private schools operated for profit denied them the equal protection of the laws was not discussed, since the question was not raised and the record failed to show that there were any children in the district who attended, or would have attended but for the cost of transportation, any school other than public schools and Catholic schools. Id., 330 U.S. at page 4 note 2, 67 S.Ct. at page 506. The decision uphold a decision of the New Jersey Court of Errors and Appeals on the federal questions involved. Everson v. Board of Education, 133 N.J.L. 350, 44 A.2d 333.

The decisions of the Supreme Court of the United States on questions concerning the federal constitution are binding on the state courts. Hempstead v. Reed, 6 Conn. 480, 488; Trustees of Bishop's Fund v. Rider, 13 Conn. 87, 93 ; State v. Palko, 122 Conn. 529, 539, 191 A. 320, 113 A.L.R. 628; Wojculewicz v. Cummings, 143 Conn. 624, 629, 124 A.2d 886. Its decision in the Everson case, supra, disposes of the plaintiffs' claims under the federal constitution except in one respect, that is, that § 10-281, because it provides for the furnishing of transportation for children attending nonprofit private schools but not for children attending private schools conducted for profit, denies the latter the equal protection of the laws and discriminates against them. U.S.Const. Amend. XIV § 1. Whether § 10-281 is unconstitutional in that respect we are not now called upon to decide. It does not appear that any of the plaintiffs are persons who are being denied transportation because they are attending, or propose to attend, a private school conducted for profit. Since the plaintiffs are not members of the class which is claimed to be discriminated against, they cannot challenge the constitutionality of the statute on the ground in question. McAdams v. Barbieri, 143 Conn. 405, 411, 123 A.2d 182; Carroll v. Socony-Vacuum Oil Co., 136 Conn. 49, 59, 68 A.2d 229; 11 Am.Jur. 759, § 114.

The plaintiffs claim that § 10-281 violates article first, §§ 1 and 12, of the Connecticut constitution in that § 10-281 discriminates against those attending private schools conducted for profit and provides for the use of public funds for a private purpose. The equal protection and due process clauses of the federal constitution and the corresponding provisions of §§ 1 and 12 of article first of our state constitution have substantially the same meaning. Karen v. Town of East Haddam, 146 Conn. 720, 726, 155 A.2d 921; New Haven Metal & Heating Supply Co. v. Danaher, 128 Conn. 213, 219, 21 A.2d 383; State ex rel. Brush v. Sixth Taxing District, 104 Conn. 192, 195, 132 A. 561. The plaintiffs are in no better position to raise the claim of discrimination under the state constitution than they are to raise it under the federal constitution. As regards their second point, it is true that a tax may not be imposed to provide funds to carry out a private, as distinguished from a public, purpose. Beach v. Bradstreet, 85 Conn. 344, 348, 82 A. 1030; Lyman v. Adorno, 133 Conn. 511, 515, 52 A.2d 702. But '[i]t is much too late to argue that legislation intended to facilitate the opportunity of children to get a secular education serves no public purpose.' Everson v. Board of Education, 330 U.S. 1, 7, 67 S.Ct. 504, 507, 91 L.Ed. 711; Cochran v. Louisiana Board of Education, 281 U.S. 370, 50 S.Ct. 335, 74 L.Ed. 913; Interstate Consolidated Street Ry. Co. v. Commonwealth of Massachusetts, 207 U.S. 79, 87, 28 S.Ct. 26, 52 L.Ed. 111; Forman Schools, Inc. v. Town of Litchfield, ...

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