Doremus v. Board of Education of Borough of Hawthorne

• Decision Date: 03 March 1952
• Docket Number: No. 9,9
• Citation: Doremus v. Board of Education of Borough of Hawthorne, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952)
• Parties: DOREMUS et al. v. BOARD OF EDUCATION OF BOROUGH OF HAWTHORNE et al
• Court: U.S. Supreme Court

342 U.S. 429

72 S.Ct. 394

96 L.Ed. 475

DOREMUS et al.

v BOARD OF EDUCATION OF BOROUGH OF HAWTHORNE et al.

No. 9.

Argued Jan. 31, 1952.

Decided March 3, 1952.

Mr. Heyman Zimel, Paterson, N.J., for appellants.

Messrs. Henry F. Schenk, Theodore D. Parsons, Trenton, N.J., for appellee.

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, N.J.S.A. 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 Federal Constitution, in spite of jurisdic- tional 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 schoolding 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; Commonwealth of Massachusetts v. Mellon (1923), 262 U.S. 447, at page 488, 43 S.Ct. 597, 67 L.Ed. 1078, at page 1085. The point has substance but we have nevertheless concluded to dispose of the ap- peal on its merits.' 1950, 5 N.J. 435, 439, 75 A.2d 880, 881—882.

Upon appeal to this Court, we considered appellants' jurisdictional statement but, instead of nothing 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. McCollum v. Board of Education of School Dist. No. 71, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 648, assert a challenge to the Act in two capacities—one as parent of a child subject to it, and both as taxpayers burdened because of its requirements.

In support of the parent-and-school-child relationship, the complaint alleged that appellant Klein was parent of a seventeen-year-old pupil in Hawthorne High School, where Bible reading was practiced pursuant to the Act. That is all. There is no assertion that she was injured or even offended thereby or that she was compelled to accept, approve or confess agreement with any dogma or creed or even to listen when the Scriptures were read. On the contrary, there was a pretrial stipulation that any student, at his own or his parents' request, could be excused during Bible reading and that in this case no such excuse was asked. However, it was agreed upon argument here that this child had graduated from the public schools before this appeal was taken to this Court. Obviously no decision we could render now would protect any rights she may once have had, and this Court does not sit to decide arguments after events have put them to rest. United States v. Alaska Steamship Co., 253 U.S. 113, 116, 40 S.Ct. 448, 449, 64 L.Ed. 808.

The complaint is similarly niggardly of facts to support a taxpayer's grievance. Doremus is alleged to be a citizen and taxpayer of the State of New Jersey and of the Township of Rutherford, but any relation of that Township to the litigation is not disclosed to one not familiar with local geography. Klein is set out as a citizen and taxpayer of the Borough of Hawthorne in the State of New Jersey, and it is alleged that Hawthorne has a high school supported by public funds. In this school the Bible is read, according to statute. There is no allegation that this activity is supported by any separate tax or paid for from any particular appropriation or that it adds any sum...