Epeldi v. Engelking

• Decision Date: 01 September 1971
• Citation: 488 P.2d 860,94 Idaho 390
• Parties: Mr. and Mrs. Louis EPELDI, husband and wife et al., Plaintiffs-Respondents, v. D. F. ENGELKING, as Superintendent of Public instruction et al., Defendants-Appellants. No 10796.
• Court: Idaho Supreme Court

Page 860

488 P.2d 860

94 Idaho 390

Mr. and Mrs. Louis EPELDI, husband and wife et al., Plaintiffs-Respondents, v. D. F. ENGELKING, as Superintendent of Public instruction et al., Defendants-Appellants.

No 10796.

Supreme Court of Idaho.

Sept. 1, 1971.

Rehearing Denied Sept. 27, 1971.

Robert M. Robson, Atty. Gen. (at time of briefing), W. Anthony Park, Atty. Gen. (at time of argument) and James G. Hargis, Asst. Atty. Gen., Boise, for defendants-appellants.

Hawley, Troxell, Ennis & Hawley, Boise, and Philip F. Peterson, Lewiston, for plaintiffs-respondents.

McFADDEN, Justice.

The plaintiffs (respondents on this appeal) instituted this class action on their own behalf and on behalf of all parents of school children and the children themselves attending parochial schools in Idaho. The defendants, the State Superintendent of Public Instruction and the members of the State Board of Education, admitted most of the factual allegations of the plaintiffs' complaint, and the cause was submitted to the trial court on a stipulated set of facts. The trial court rendered a memorandum opinion, findings of fact and conclusions of law, upholding the constitutionality of the statute in question, and entered judgment accordingly. This appeal followed.

By this action the plaintiffs seek a declaratory judgment that allocation by defendants (appellants herein) of state funds to the several school districts pursuant to I.C. § 33-1501 as amended, S.L.1970, Ch. 91, § 1, ¹ for the purpose of transportation of the parochial students is constitutional.

It was stipulated, and the trial court found, that the appellants have indicated by letter their intent to refuse to allocate moneys for the foundation program of the local school districts to be used to transport children to parochial schools; that there are approximately 5,000 students attending parochial schools throughout the state with about 1,000 students qualifying to be counted in the transportation formula calculations; that I.C. § 33-1501 as amended, permitted the transportation of students to private schools and that the State Board of Education has refused to spend tax moneys for this purpose by reason that such expenditures are contrary to Idaho Const. art. 9, § 5; that many of the students attending parochial schools are riding school buses furnished by the parents of the children, which buses are inferior in condition and maintenance to the school district buses; that many of the children not riding buses to the parochial schools must seek their own methods of transportation, or walk long distances to school upon roads not having sidewalks, or are required to ride bicycles on crowded streets. It was further stipulated that all of the parochial schools are duly certified The appellants assert the trial court was in error in concluding and holding that the allocation of state tax money to meet extra costs incurred for the transportation of children attending schools operated by religious organizations does not violate the provisions of art. 9, § 5, of the Idaho Constitution. ² Correlative to that assertion, the appellants further agrue that the trial court erred in holding that the various school districts in the state and appellants herein may expend tax money for the transportation of children attending parochial schools.

and inspected as accredited schools in the State of Idaho and all of the teachers teaching in the schools are certified and accredited by the State of Idaho; that all of the schools derive their support from the parishes in which they are located and any tuition paid by the child is incidental.

The trial court primarily relied on two dicisions of the United States Supreme Court in arriving at its conclusion that this particular statute did not contravene the provisions of art. 9, § 5. From School Dist. of Abington Township, Pa. v. Schempp, 374 U.S. 203 at 222, 83 S.Ct. 1560 at 1571, 10 L.Ed.2d 844 at 858 (1963), the trial court quoted in its memorandum decision:

'* * * The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.'

The trial court further quoted the following language from Board of Education of Central School Dist. No. 1 v. Allen, 392 U.S. 236 at 242, 88 S.Ct. 1923 at 1926, 20 L.Ed.2d 1060 at 1065 (1968):

'* * * The statute was held to be valid even though one of its results was that 'children are helped to get to church schools' and 'some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets.' (Citation.) As with public provision of police and fire protection, sewage facilities, and streets and sidewalks, payment of bus fares was of some value to the religious school, but was nevertheless not such support of a religious institution as to be a prohibited establishment of religion within the meaning of the First Amendment.' (Referring to Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), discussed infra).

Applying the tests of these two opinions, the trial court reasoned that

'(a) reading of the statute, as amended, clearly indicates that the purpose of the statute is a secular legislative purpose, that is, to provide all children in the state with the same right of bus service to the school of their choice. The bus service will be controlled by the public school district. The money will be expended by them. Thus it appears that the sole purpose of the legislation is to provide fair and adequate means of transportation for all children of the state whether they attend public or private The trial court related these opinions of the United States Supreme Court to the issue presented by the statute in question when considered in light of Idaho const. art. 9, § 5, and determined that under the tests of those cases, the statute did not contravene the prohibitions of the Idaho Constitution.

schools, and the benefits, if any, to the private schools are incidental.'

It is appellants' position that the Idaho constitutional provision is more restrictive than the First Amendment of the United States Constitution ³ and that the trial court improperly relied on the tests set forth in School Dist. v. Schempp and in Board of Education v. Allen, both supra. In support of this position, the appellants rely on a line of authorities exemplified by Matthews v. Quinton, 362 P.2d 932 (Alaska 1961); Visser v. Nooksack Valley School Dist. No. 506, 33 Wash.2d 699, 207 P.2d 198 (1949); and Judd v. Board of Education, 278 N.Y. 200, 15 N.E.2d 576, 118 A.L.R. 789 (1938). ⁴

In Matthews v. Quinton, supra, the Supreme Court of Alaska was concerned with validity of a statute authorizing transportation of students attending non-public schools in light of its constitutional prohibition that '(n)o money shall be paid from public funds for the direct benefit of any religious or other private educational institution.' Alaska Const. art. VII, § 1. That court held that the furnishing of transportation to students attending nonpublic schools at public expense was a direct benefit to the school and the statute unconstitutional. Therein that court relied on the dissent of Justice Rutledge in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), and on other state court opinions, including Visser v. Nooksack Valley School Dist., supra.

Following the reasoning in Matthews v. Quinton, supra, the Hawaiian Supreme Court, in Spears v. Honda, 51 Haw. 1, 449 P.2d 130 (1969), also held that a statute authorizing use of public funds to provide bus transportation subsidies to sectarian and private school students was contrary to the provisions of its constitution, which stated, 'Nor shall public funds be appropriated for the support or benefit of any sectarian or private educational institution.'

Visser v. Nooksack Valley School Dist. No. 506, supra, involved Washington Const. art. 1, § 11, which provides '* * * No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or the support of any religious establishment. * * *.' Therein the Washington court held that following its earlier decision in Mitchell v. Consolidated School Dist. No. 201, 17 Wash.2d 61, 135 P.2d 79, 146 A.L.R. 612 (1943), the statute authorizing 'All children attending school in accordance with the laws relating to compulsory attendance in the State of Washington shall be entitled to use the transportation facilities provided by the school district in which they reside' was unconstitutional. The Visser opinion reiterated the statement in Judd v. Board of Education, 278 N.Y. 200 '* * * (t)he argument is advanced that furnishing transportation to the pupils of private or parochial schools is not in aid or support of the schools within the spirit or meaning of our organic law but, rather, is in aid of their pupils. That argument is utterly without substance. * * * Free transportation of pupils induces attendance at the school. The purpose of the transportation is to promote the interests of the private school or religious or sectarian institution that controls and directs it. * * *.' 207 P.2d at 203.

15 N.E.2d 576, 118 A.L.R. 789, as previously quoted in the Mitchell case, that

As opposed to these authorities, the respondents call our attention to a series of cases which hold that the furnishing of transportation to students attending private or parochial schools does not transcend either the state or federal constitutional provisions dealing with the separation between the state and religious sector of our society. Generally this other...