342 U.S. 429 (1952), 9, Doremus v. Board of Education of Borough of Hawthorne

Docket NºNo. 9
Citation342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475
Party NameDoremus v. Board of Education of Borough of Hawthorne
Case DateMarch 03, 1952
CourtUnited States Supreme Court

Page 429

342 U.S. 429 (1952)

72 S.Ct. 394, 96 L.Ed. 475



Board of Education of Borough of Hawthorne

No. 9

United States Supreme Court

March 3, 1952

Argued January 31, 1952



A statute of New Jersey provides for the reading, without comment, of five verses of the Old Testament at the opening of each public school day. In a declaratory judgment action instituted by the two appellants, the State Supreme Court held that the statute did not violate the Federal Constitution. Appellants appealed to this Court. One of the appellants had sued as the parent of a public school child, and each had sued as a taxpayer.

Held: the appeal is dismissed for want of jurisdiction. Pp. 430-435.

1. The cause is moot so far as it relates to the rights of the child in question, since she graduated from the public schools before the appeal was taken to this Court. Pp. 432-433.

2. The facts stated by appellants as taxpayers were not sufficient to constitute a justiciable case or controversy within the jurisdiction of this Court, because they do not show such direct and particular financial interest as is necessary to maintain a taxpayer's case or controversy. Pp. 433-435.

5 N.J. 435, 75 A.2d 880, appeal dismissed.

In a declaratory judgment action instituted by appellants in a New Jersey court to test the constitutionality of a statute of that State, the State Supreme Court held that the statute did not violate the Federal Constitution. 5 N.J. 435, 75 A.2d 880. An appeal to this Court is dismissed, p. 435.

Page 430

JACKSON, J., lead opinion

MR. JUSTICE JACKSON delivered the opinion of the Court.

This action for a declaratory judgment on a question of federal constitutional law was prosecuted in the state courts of New Jersey. It sought to declare invalid a statute of that State which provides for the reading, without comment, of five verses of the Old Testament at the opening of each public school day. N.J.Rev.Stat., 1937, 18:14-77. No issue was raised under the State Constitution, but the Act was claimed to violate the clause of the First Amendment to the Federal Constitution prohibiting establishment of religion.

No trial was held, and we have no findings of fact, but the trial court denied relief on the merits on the basis of the pleadings and a pretrial conference, of which the record contains meager notes. The Supreme Court of New Jersey, on appeal, rendered its opinion that the Act does not violate the [72 S.Ct. 396] Federal Constitution, in spite of jurisdictional

Page 431

doubts which it pointed out, but condoned as follows:

No one is before us asserting that his religious practices have been interfered with or that his right to worship in accordance with the dictates of his conscience has been suppressed. No religious sect is a party to the cause. No representative of, or spokesman for, a religious body has attacked the statute here or below. One of the plaintiffs is "a citizen and taxpayer;" the only interest he asserts is just that, and in those words, set forth in the complaint and not followed by specification or proof. It is conceded that he is a citizen and a taxpayer, but it is not charged, and it is neither conceded nor proved that the brief interruption in the day's schooling caused by compliance with the statute adds cost to the school expenses or varies by more than an incomputable scintilla the economy of the day's work. The other plaintiff, in addition to being a citizen and a taxpayer, has a daughter, aged seventeen, who is a student of the school. Those facts are asserted, but, as in the case of the co-plaintiff, no violated rights are urged. It is not charged that the practice required by the statute conflicts with the convictions of either mother or daughter. Apparently the sole purpose and the only function of plaintiffs is that they shall assume the role of actors so that there may be a suit which will invoke a court ruling upon the constitutionality of the statute. Respondents urge that, under the circumstances the question is moot as to the plaintiffs appellants, and that our declaratory judgment statute may not properly be used in justification of such a proceeding. Cf. New Jersey Turnpike Authority v. Parsons, 3 N.J. 235, 69 A.2d 875; Massachusetts v. Mellon, 262 U.S. 447, at 488 (1923). The point has substance, but we have nevertheless concluded to dispose of the appeal

Page 432

on its merits.

5 N.J. 435, 439, 75 A.2d 880, 881-882 (1950).

Upon appeal to this Court, we considered appellants' jurisdictional statement, but, instead of noting probable jurisdiction, ordered that

Further consideration of the question of the jurisdiction of this Court in this case and of the motion to dismiss or affirm is postponed to the hearing of the case on the merits.

On further study, the doubts thus indicated ripen into a conviction that we should dismiss the appeal without reaching the constitutional question.

The view of the facts taken by the court below, though it is entitled to respect, does not bind us, and we may make an independent examination of the record. Doing so, we find nothing more substantial in support of jurisdiction than did the court below. Appellants, apparently seeking to bring themselves within Illinois ex rel....

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