Bd. of Educ. of Baltimore County v. Wheat, 58.

CourtCourt of Appeals of Maryland
Writing for the CourtBOND, Chief Judge.
Citation199 A. 627
Docket NumberNo. 58.,58.
Decision Date20 May 1938
199 A. 627


No. 58.

Court of Appeals of Maryland.

May 20, 1938.

199 A. 628

Appeal from Circuit Court, Baltimore County; C. Gus Grason, Judge.

Petition by Carroll O. Wheat, Jr., an infant under the age of twenty-one years, by Hilda C. Wheat, his mother and next friend, against the Board of Education of Baltimore County for a writ of mandamus to compel the Board to carry him to and fro between his home and a Roman Catholic parochial school in accordance with a public local law of the county. From an order granting the writ, defendant appeals.



William L. Rawls and William L. Marbury, Jr., both of Baltimore (Cornelius V. Roe, of Towson, and G. Van Velsor Wolf, of Baltimore, on the brief), for appellant. Robert R. Bowie and Edward H. Burke, both of Baltimore (Lawrence E. Ensor and William P. Bolton, both of Towson, on the brief), for appellee.

199 A. 629

BOND, Chief Judge.

The infant appellee, a pupil at a Roman Catholic parochial school in Baltimore County, the Immaculate School, has been granted the writ of mandamus to compel the Board of Education of the county to carry him to and fro between his home and the school in accordance with a public local law of the county, Acts of 1937, chapter 185, ordering transportation of such a child in a bus provided for public school children. The Board lies appealed, and on its appeal questions the validity of the provision on several grounds, but principally that as the school he attends is a private school and he is attending it rather than the public school for the religious 'training of his parent's choice, the promotion of his convenience in doing so is in effect a diversion of public school funds to a private purpose, and a contribution to the maintenance of a place of worship in contravention of the Declaration of Rights of the state.

The statutory provision, Acts 1937, c. 185, p. 321, § 146A, is that all children who attend schools in the county which do not receive state aid, and who reside on or along or near the public highways on which there is now or hereafter operated a public school bus provided by the Board of Education for transporting children to and from the public schools, shall be entitled to transportation on the same buses from a point on the highway nearest or most accessible to the home of the child to a point nearest or most accessible to its school, without changing the route of the bus, upon the same terms as those provided for public school children. A second section of the statute, Acts 1937, c. 185, p. 322, § 146B, provides for the raising of money necessary, not exceeding $15,000, for the additional expense, and authorizes the establishment of additional bus routes. Funds for the purpose have been appropriated by the County Commissioners, but the board, questioning the validity of the enactment, has declined to administer them.

To the petition for the writ the board answered setting up its contentions, the petitioner demurred to the answer, and the demurrer was sustained; and no further proceedings being taken the writ was ordered to issue.

There is no dispute of fact. It is conceded that this child, who lives about 400 feet from a road along which a public school bus passes, and whose school is about three miles on the road toward Towson where the public school is situated, is in all respects within those entitled to transportation under the questioned statute if it is valid. The school does not receive state aid. It is conducted in connection with a Roman Catholic church, the Immaculate Church, its pupils are taught and disciplined by sisters of that church, and during school sessions they are given instruction in the Roman Catholic faith, and at times attend for worship in the church.

Compliance of the title of the act with the constitutional requirement that the subject should be described in it is questioned. Constitution, art. 3, sec. 29. It is, in brief, "An Act to add two new sections to Offutt's Revised Code of the Public Local Laws of Baltimore County * * * to follow Section 146 * * * and to be known as Section 146A and Section 146B, directing the Board of Education of Baltimore County to provide certain transportation for children attending certain schools in Baltimore County, and directing the County Commissioners * * * to appropriate certain funds." The appellee refers to the rule that a description merely by designation of article and sections added to the Code may be sufficient. Dean v. Slacum, 149 Md. 578, 132 A. 73. But this title does not leave the description at that; it undertakes to give more information and the objection is that what is given is misleading. Buck Glass Co. v. Gordy, 170 Md. 685, 688, 185 A. 886. It is objected that "certain schools" in a statute, especially one appropriating certain public funds, would lead to an assumption that public schools were dealt with in the body of the enactment. The facts that provision for public schools only is the concern of the Legislature, and that in common understanding "schools" in any governmental provision would regularly be public schools, are urged as having an effect to conceal, under this title, a provision for conveying children to and from private and parochial schools. State v. King, 124 Md. 491, 498, 92 A. 1041; Culp v. Commissioners, 154 Md. 620, 625, 141 A. 410; Buck Glass Co. v. Gordy, supra.

The question is one of degree of likelihood of leading to a misconception of the enactment, and the court has come to the conclusion that in this instance the likelihood

199 A. 630

is not so great as to render the title insufficient. Culp v. Commissioners, supra. For testing conformity of a title to this constitutional requirement, there is enjoined upon the courts a disposition to uphold rather than to defeat the enactment. State v. Norris, 70 Md. 91, 96, 16 A. 445; Barron v. Smith, 108 Md. 317, 327, 70 A. 225.

A second ground of objection is that of a violation of the prohibition in article 3, sec. 33 of the Constitution against passage of a special law for any case for which provision has been made by an existing general law. The present local act is in the argument considered to be a special one, excluded by the provisions in article 77, of the Code of Public General Laws concerning expenditures by the board for school purposes, and the transportation of pupils of schools. Section 56 of article 77 requires the Board of Education of each county, subject to the rules and regulations of the State Board, with the advice of the County Superintendent, to prepare a budget, "showing the unexpended balance on hand or in [its] treasury for each specific purpose allowed and levied by the County Commissioners at the preceding levy the amount of money needed for permanent improvements and repairs, and for current repairs, furniture for old builings, maintenance and support of schools during the succeeding school year, also the estimated total amount that will be received from the State, which shall be used for paying teachers' salaries and purchasing text-books, materials of instruction, and school supplies; and finally the amount that will be needed to be raised by local taxation." Section 50 was passed as an incident to an authority to consolidate schools previously existing, adding to that authority a provision that the county board of education "shall pay, when necessary, for the transportation of pupils to and from such consolidated schools."

The court does not see that these sections must exclude subsequent local legislation, otherwise valid, for conveyance of private school children. Another subject of expense might properly be added to those enumerated, and might be added for the one county if the General Assembly should find reason for it. The constitutional prohibition now considered is not against local laws but against special laws. County Commissioners of Dorchester County v. Meekins, 50 Md. 28, 39. The requirement would be a special law only if it should be regarded as a provision for selected persons or institutions. State v. Baltimore County Commissioners, 29 Md. 516, 519; Dasch v. Jackson, 170 Md. 251, 261, 183 A. 534. And if it is a special law by that definition, its subject matter does not seem to the court to have been provided for in the existing general law, section 56, with the consequence that the special law is prohibited. Nor is an exclusive covering of the subject found in section 50. Being part of a provision for consolidating the schools it is itself one of of limited scope and purpose, that is, to obviate the disadvantage of distance of the centralized schools from many pupils. It does not attempt to cover the whole subject of conveyance of school children, so as to exclude extension of the use of buses by a subsequent local law.

Does it, then, as a provision for private school children, violate the prohibition against the use of funds for private purposes in articles 15 and 23 of the Declaration of Rights, and violate that of the Fourteenth Amendment to the United States Constitution, U.S.C.A. Const. Amend. 14, by taking money of the taxpayers for the use of private institutions? Baltimore & Eastern Shore R. Co. v. Spring, 80 Md. 510, 31 A. 208, 27 L.R.A. 72; Citizens' Sav. & Loan Association v. Topeka, 20 Wall. 655, 22 L.Ed. 455; Jones v. City of Portland, 245 U.S. 217, 38 S.Ct. 112, 62 L.Ed. 252, L.R.A. 1918C, 765, Ann.Cas.1918E, 660; Green v. Frazier, 253 U.S. 233, 40 S.Ct. 499, 64 L. Ed. 878. The actual provision is more narrowly limited than the question might suggest. It is, in substance, that the buses provided to transport public school children shall also accommodate children of the private schools entering and leaving along the road. No buses are to be provided for private school children especially, although an increase in the number of all children to...

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