Roman Catholic Welfare Corp. of San Francisco v. City of Piedmont

• Decision Date: 27 October 1955
• Court: California Supreme Court
• Parties: The ROMAN CATHOLIC WELFARE CORPORATION OF SAN FRANCISCO, a (California) Corporation, Petitioner, v. CITY OF PLEDMONT a Municipal Corporation, and R. H. Barrett, as Building Inspector and as Building Official of said City of Piedmont, Respondents. S. F. 19149. . In Bank

Page 438

289 P.2d 438

45 Cal.2d 325

The ROMAN CATHOLIC WELFARE CORPORATION OF SAN FRANCISCO, a (California) Corporation, Petitioner, v. CITY OF PLEDMONT a Municipal Corporation, and R. H. Barrett, as Building Inspector and as Building Official of said City of Piedmont, Respondents.

S. F. 19149.

Supreme Court of California.

In Bank.

Oct. 27, 1955.

As Modified on Denial of Rehearing Nov. 23, 1955.

Andrew F. Burke, San Francisco, for petitioner.

Irving Shore, Marvel D. Shore, San Francisco, Lawrence Speiser, Philip Adams, Wayne M. Collins, William Coblentz, Kamina K. Gupta, Ruth Church Gupta, George G. Olshausen, Albert C. Agnew, Ira W. Barr, San Francisco, Leo Pfeffer and Philip Baum, New York City, amici curiae, on behalf of petitioner.

J. Marcus Hardin, City Atty., Oakland, and Cyril Viadro, San Francisco, for respondents.

J. W. O'Neill, Oakland, amicus curiae, on behalf of respondents.

CARTER, Justice.

This is a proceeding in mandamus by petitioner, the Roman Catholic Welfare Corporation of San Francisco, to compel the issuance of a building permit for the construction of a building to be used for an elementary school in which secular and religious subjects were to be taught. The building permit was denied on the sole ground that a zoning ordinance of the city of Piedmont prohibited the construction of any school within Zone A, where petitioner's land is located, except public schools under the jurisdiction of the board of education of the city of Piedmont. In Zone A, there are three elementary schools, one junior high school and one high school, all under the jurisdiction of the board of education of the city. The ordinance in question was passed by the city council and approved by a large majority of the voters at a general election.

There is only one question involved: Whether the city of Piedmont may, by ordinance, constitutionally prevent the construction of a building to be used for private school purposes in an area where public schools are located.

'It is well settled that zoning ordinances, when reasonable in object and not arbitrary in operation, constitute a justifiable exercise of police power, * * *. Every intendment is in favor of the validity of the exercise of police power, and, even though a court might differ from the determination of the legislative body, if there is a reasonable basis for the belief that the establishment of a strictly residential district has substantial relation to the public health, safety, morals or general welfare, the zoning measure will be deemed to be within the purview of the police power.' Wilkins v. City of San Bernardino, 29 Cal.2d 332, 337, 175 P.2d 542, 547.

We must then determine whether, in the instant case, there is a reasonable basis for the ordinance prohibiting private schools in an area where public schools are permitted. Petitioner acquired its property subsequent to the time the ordinance was passed. It is conceded that the question is one of first impression in this state.

The record shows that Zone A is composed of 98.7% of the entire area of the city of Piedmont and is populated by approximately 98.2% of the entire population of the city of Piedmont. Zone B has .59% of the area of the city and consists of three non-contiguous parcels of land none of which is unimproved; Zone C has .24% of the area of the city and consists of ten non-contiguous parcels of land none of which is unimproved; Zone D has .46% of the total area of the city and consists of five non-contiguous parcels of land two of which are unimproved. Private schools are permitted in Zones B, C, and D. The land owned by petitioner and on which it is contemplated the private school in question will be constructed is immediately adjacent to Corpus Christi (Roman Catholic) Church.

Petitioner argues that the ordinance in question is unconstitutional and void because of its arbitrary and unreasonable discrimination against private schools. Respondents, on the other hand, argue that the ordinance constitutes a reasonable exercise of the city's police power in that the city is primarily residential in character, that in excluding private schools, the city council could consider such factors as the character of the district, the conservation of property values, public opinion, matters affecting traffic control, size of streets, parking, noise, fire protection, over-burdening of water mains and sewers, and the peace, comfort and quiet of the district. It is contended that private schools may be located in the three remaining zones; that the proposed school would be attended by children from both Oakland (the adjacent city) and Piedmont and perhaps children from other communities while the public schools in the zone would be attended by only Piedmont children and that the larger number of children would bring about more noise and traffic hazards with the necessity for more traffic control. Respondents rely on State ex rel. Wisconsin Lutheran High School Conference v. Sinar, 267 Wis. 91, 65 N.W.2d 43, 47, a mandamus action by a private, nonprofit corporation to compel the city building inspector to issue a permit for the construction of a private high school in a class 'A' residential zone where public schools were permitted. It was there held, with two justices dissenting, that '* * * tangible differences material to the classifications of the ordinance can be readily pointed out which sustain the distinction made by the ordinance between the schools. To begin with, the term 'public' is the antithesis of 'private'. The public school is not a private one. They serve different interests and are designed to do so. The private school is founded and maintained because it is different. Is that difference material to the purpose of zoning? In many respects the two schools perform like functions and in probably all respects concerning noise, traffic difficulties and the other objectionable features already mentioned they stand on an equality, so that in several of the objects of zoning ordinances, the promotion of health, safety and morals, as laid down by sec. 62.23(7)(a), Stats., and developed by respondent's brief, we may not say that the two schools differ. But when we come to 'the promotion of the general welfare of the community'8 'Ay, the general welfare of the community', 'Ay, has the same features objectionable to the surrounding area as a private one, but it has, also, a virtue which the other lacks, namely, that it is located to serve and does serve that area without discrimination. Whether the private school is sectarian or commercial, though it now complains of discrimination, in its service it discriminates and the public school does not. Anyone in the district of fit age and educational qualifications may attend the public high school. It is his right. He has no comparable right to attend a private school. To go there he must meet additional standards over which the public neither has nor should have control. The private school imposes on the community all the disadvantages of the public school but does not compensate the community in the same manner or to the same extent. if the private school does not make the same contribution to public welfare this difference may be taken into consideration by the legislative body in framing its ordinance. If education offered by a school to the residents of an area without discrimination is considered by the council to compensate for the admitted drawbacks to its presence there, that school may be permitted a location which is denied to another school which does not match the offer, and we can not say that such a distinction is arbitrary or unreasonable or that such discrimination between the two schools lacks foundation in a difference which bears a 'fair, substantial, reasonable and just relation' to the promotion of the general welfare of the community, which is the statutory purpose of zoning laws in general and of the ordinance in question.' The dissenting opinion pointed out that the primary purpose of all schools was to educate the students; that the state was interested in having educated children to the end that they eventually become good citizens; that private schools as well as public ones promote the general welfare and that there was no substantial difference in the purpose which they served. The dissenting opinion quoted from the case of Catholic Bishop of Chicago v. Kingery, 371 Ill. 257, 20 N.Ed.2d 583, 584, where it was said: 'We fail to perceive to what degree a Catholic school of this type will be more detrimental or dangerous to the public health than a public school. It is not pointed out to us just how the pupils in attendance at the parochial school are any more likely to jeopardize the public safety than the public school pupils. Nor can we arbitrarily conclude that the prospective students of the new school will seriously undermine the general welfare. As a matter of fact such a school, conducted in accordance with the educational requirements established by State educational authorities, is promotive of the general welfare.''

Petitioner argues that parents have the basic constitutional right to have their children educated in schools of their own choice, subject to reasonable regulations as to subjects required to be taught, manner of instruction, etc. In Pierce v. Society of Sisters, 268 U.S. 510, 534, 45 S.Ct. 571, 572, 69 L.Ed. 1070, it was held that the Act of 1922 which required every parent, guardian, etc. of a child between eight and sixteen years to send him 'to a public school for the period of time a public school shall be held during the current year', Laws Or.1923, p. 9, § 1, '* * * unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the...