Everson v. Bd. Of Educ. Of Ewing Tp.

• Citation: 44 A.2d 333,133 N.J.L. 350
• Decision Date: 15 October 1945
• Docket Number: No. 32.,32.
• Parties: EVERSON v. BOARD OF EDUCATION OF EWING TP. et al.
• Court: United States State Supreme Court (New Jersey)

133 N.J.L. 350

44 A.2d 333

EVERSON

v.BOARD OF EDUCATION OF EWING TP. et al.

No. 32.

Court of Errors and Appeals of New Jersey.

Oct. 15, 1945.

COPYRIGHT MATERIAL OMITTED.

Appeal from Supreme Court.

Certiorari proceeding by Arch R. Everson to set aside a resolution of the Board of Education of the Township of Ewing in the County of Mercer, providing for the transportation of pupils to both public and parochial schools. From a judgment setting aside the resolution, 39 A.2d 75, 132 N.J.L. 98, the board and others appeal.

Reversed and remanded.

Syllabus by the Court.

P.L.1941, Chapter 191 held to be a valid enactment and not in contravention of Article 1, paragraphs 3, 4, 19, and 20, or Article 4, Section 7, paragraph 6 of the Constitution of this State, N.J.S.A., or the Fourteenth Amendment to the Constitution of the United States.

CASE and COLIE, Justices, and WELLS, Judge, dissenting.

For respondents-appellants, William H. Speer, of Jersey City, of counsel; William Abbotts, of Trenton, attorney of record; George G. Tennant, of Jersey City, and Joseph Lanigan, of Trenton, amici curiae.

For prosecutor-respondent, Albert McCay, of Mount Holly, of counsel; Powell & Parker, of Mount Holly, attorneys of record; Joseph Beck Tyler, of Camden, attorney and of counsel with American Civil Liberties Union, amicus curiae.

THE CHANCELLOR.

This is an appeal from a judgment of the Supreme Court, on certiorari, setting aside a resolution of the appellant Board of Education enacted under the authority of R.S. 18:14-8, as amended by P.L.1941, Chapter 191, N.J.S.A., providing for the transportation of pupils for the school year, July 1, 1942 to June 30, 1943.

Pursuant to such resolution the appellant on February 15, 1943 authorized the payment of $8,034.95 for transportation. Of this sum $357.74 was paid to the parents of twenty-one pupils who were transported to parochial schools in Trenton, five to elementary schools and sixteen to high schools. The appellant provides no education facilities in its district beyond the eighth grade. The transportation was by public carrier bus. The payments to parents were in satisfaction of advancements made by them; and the amount was fixed upon the basis of the actual number of days' attendance as indicated upon each pupil's report card.

The record before us shows that the reasons advanced in the Supreme Court and here in support of the judgment under review are that the statute, upon which the resolution is based, is infirm and inoperative because it contravenes several constitutional inhibitions, namely, Article I, paragraphs 3, 4, 19 and 20; Article IV, Section 7, paragraph 6, of the Constitution of this State, N.J.S.A.; and the Fourteenth Amendment to the Constitution of the United States.

None of these several provisions of the Constitution, except that of Article IV, Section 7, paragraph 6, requires any discussion. For neither their language, meaning, intent, nor effect are violated by the statute, supra, or the resolution challenged in this proceeding.

We turn at once to the reason that the statutory enactment is constitutionally defective because it is said that it is in conflict with Article IV, Section 7, paragraph 6.

It appears from the majority opinion of the Supreme Court that it based its conclusion and judgment ‘on the fundamental ground that the amendment of 1941 is in violation of paragraph 6 of Section 7 of Article IV of the Constitution’ citing as authority Rutgers College v. Morgan, 70 N.J.L. 460, 57 A. 250, affirmed 71 N.J.L. 663, 60 A. 205, and In re Voorhees' Estate, 123 N.J.Eq. 142, 196 A. 365, affirmed Supreme Court 121 N.J.L. 594, 3 A.2d 891, affirmed here, 124 N.J.L. 35, 10 A.2d 650. We find in the minority opinion the statement ‘There is no proof whatever that any part of the State School Fund was so used here.’ A meticulous examination of the record shows an absolute lack of any such proof.

The duty of this court in such a situation is well established. It is settled that findings of fact by the Supreme Court on conflicting evidence or on uncontroverted evidence reasonably susceptible of different inferences are conclusive on appeal, Jersey City v. State Water Policy Commission, 118 N.J.L. 72, 77, 191 A. 456; Siravo v. Sirian Lamp. Co., 124 N.J.L. 433, 12 A.2d 682. It is also settled that we do not hesitate to reverse where there is no competent evidence to support a fact conclusion arrived at below, Ciocca v. National Sugar Refining Co., 124 N.J.L. 329, 335, 12 A.2d 130; Cirillo v. United Engineers, etc., 121 N.J.L. 511, 512, 3 A.2d 596; Grant v. Metropolitan Ice Co., 108 N.J.L. 536, 537, 158 A. 431, and further that this Court will reverse any material fact conclusion if it rests on erroneous premises. Bollinger v. Wagaraw Building Supply Co., 122 N.J.L. 512, 517, 6 A.2d 396; Ciocca v. National Sugar Refining Co., supra, 124 N.J.L. at page 335, 12 A.2d 130; Rotino v. J. P. Scanlon, Inc., 126 N.J.L. 419, 421, 19 A.2d 777.

As said, the record before us is barren of any evidence as to the source of the funds from which the challenged payment of $357.74 was made.

In this state of proof we must assume that the payment was made lawfully, from funds under appellant's control. We may not assume, in the absence of proof, that the moneys were taken from the appellant Board's distributive share of the income of the State School Fund, R.S. 18:10-1 to 17, N.J.S.A.

The history of the State School Fund-‘The Fund for the support of free schools'-may be traced from its origin in P.L.1817, pam. 26 as amended by P.L.1818, pam. 100 and succeeding statutory amendments and supplements. Pennington's Revision (1821) pp. 612, 649, 660; Nixon's Digest (4th Ed. 1868) p. 877, secs. 65-75; Revision (1877) p. 1081, secs. 65-76 and p. 1087, Secs. 101, 102; 3 Gen.Stat. 3030, sec. 65-76; 4 Comp.Stat. 4778, secs. 166-176; R.S. 18:10-1 to 17, N.J.S.A. Therein is perceived the basis and reason for the constitutional provision relied on by the Supreme Court which was originally inserted in the basic law in 1844.

This constitutional provision of 1844 stripped the legislature of the power it had reserved to itself in P.L. 1818, pam. 100, to change, alter or dissolve this trust fund. The capital of the fund and the income therefrom were protected against trespass by the legislature. State v. Borough of Rutherford, 98 N.J.L. 465, 467, 120 A. 202. The constitutional provision together with other statutes identifies the fund therein referred to.

The amendment of this paragraph of the Constitution in 1875 had an entirely different purpose than the provision just discussed. The amendment of 1875 was a mandate to the legislature to broaden the field of free public school education and pursuant to this mandate legislation was enacted to pay the cost of such education by providing for the raising of a state school tax, delegating taxing powers to local school districts to raise funds for local school purposes and dedicating certain railroad taxes and other state funds for the same purpose. These were all statutory provisions and were subject to alteration, modification, and repeal by subsequent legislation untrammeled by the constitutional inhibition applicable to the fund for the support of free schools. The legislature already had the necessary power and the amendment or 1875 neither increased nor limited it in any particular.

Nothing appears on the face of the resolution or the challenged statute that could be construed to authorize the use by the appellant of any of its apportioned share of the income of the fund for the support of free schools, R.S. 18:10-1 to 17, N.J.S.A., to pay the cost of transportation of pupils to parochial schools.

We are asked to imply that the statute and resolution authorize the use of constitutionally proscribed funds for such purpose.

This we may not do. The rule is that courts will presume in favor of the constitutionality of a statute and will incline to a construction favoring its validity unless it invalidity plainly appears. State v. Tachin, 92 N.J.L. 269, 274, 106 A. 145, affirmed 93 N.J.L. 485, 108 A. 318; State Board of Milk Control v. Newark Milk Co., 118 N.J.Eq. 504, 519, 179 A. 116; State v. Murzda, 116 N.J.L. 219, 223, 183 A. 305.

We are likewise urged to construe R.S. 18:10-41, N.J.S.A., as indicating an unconstitutional use of money by the appellant. This section requires the county superintendent of schools to apportion the State School moneys allotted to the county to the respective school districts for certain purposes designated therein.

Let it be noted here that all funds included in the phrase ‘state school moneys' are not within the constitutional inhibition relied on by the respondent. The section, however, requires the County Superintendent to apportion out of State School moneys ‘Seventy-five per cent of the cost of transportation of pupils to a public school or schools * * *.’

The language is clear and unambiguous.

In the case before us the total transportation cost was $8,034.95 for a half year which included $357.74 as the cost of transporting parochial school pupils and in the absence of proof to the contrary we must assume that the County Superintendent obeyed the statute and based the allotment on the cost of transporting the pupils to the public school or schools.

School districts, such as the appellant, are authorized by R.S. 18:7-78, N.J.S.A., to raise by special district taxes funds to defray certain current charges and expenses of the public schools in their districts including ‘transportation of pupils * * *’ and ‘the incidental expenses of the schools.’

Funds so raised are not proscribed or limited in their use by Article IV, Section 7, paragraph 6 of the Constitution.

The intent of P.L.1941, Chapter 191, is that pupils may be transported to parochial schools only as an incident to the transportation of pupils to the public schools since the statute provides that children attending schools could be furnished...