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

Decision Date13 September 1944
Docket NumberNo. 233.,233.
Citation39 A.2d 75,132 N.J.L. 98
PartiesEVERSON v. BOARD OF EDUCATION OF EWING TP. et al.
CourtNew Jersey Supreme Court
OPINION TEXT STARTS HERE

Certiorari proceeding by Arch R. Everson to set aside a resolution of the Board of Education of the Township of Ewing, appropriating money for transportation of school children of such township to designated schools not connected with the public school system, as well as public high schools.

Resolution set aside.

HEHER, Justice, dissenting.

Syllabus by the Court

.

Resolution of township board of education, appropriating money, part of school fund, for transportation of pupils to and from schools in a neighboring city other than public schools, held unconstitutional and invalid.

October term, 1943, before PARKER, HEHER, and PERSKIE, JJ.

Harold T. Parker, of Mt. Holly, for prosecutor Joseph Beck Tyler, of Camden, amicus curiae.

John Solan and William Abbotts, both of Trenton, for respondents.

PARKER, Justice.

The question raised by this writ, and submitted on briefs without oral argument, is as to the legal validity of a resolution adopted by the Board of Education of the township of Ewing, adjoining the City of Trenton, relating to the transportation to Trenton and return, of school children. It appears that the public school facilities in the township do not extend beyond the eighth grade, and that pupils past that grade have customarily attended public schools in Trenton or Pennington, the township paying the tuition and also the costs of transportation advanced by parents or other relatives. Previous to July 1, 1941 all children so transported attended public high schools, and the township Board contracted for their transportation pursuant to R.S. 18:14-8, N.J.S.A., the first paragraph of which provided that ‘whenever in any district there are children living remote from the schoolhouse, the board of education of the district may make rules and contracts for the transportation of such children to and from school.’ The original act seems to date from 1903. (Acts of second special session, page 45.) But in 1941 (P.L. page 581, N.J.S.A. 18:14-8) the paragraph above quoted was amended and another paragraph added. In the first paragraph the words ‘the schoolhouse’ are changed to read ‘any schoolhouse’ and after the words ‘to and from school’ the paragraph continues ‘including the transportation of school children to and from school other than a public school, except such school as is operated for profit in whole or in part.’ The additional paragraph reads: ‘When any school district provides any transportation for public school children to and from school, transportation from any point in such established school route to any other point in such established school route shall be supplied to school children residing in such school district in going to and from school other than a public school, except such school as is operated for profit in whole or in part.’

The result, of course, is to provide for free transportation of children at the expense of the home municipality and of the State school fund to and from any school, other than a public school, which is not operated for profit; and accordingly, the resolution brought up by this writ provides for the transportation of school children of Ewing township, not only to the Trenton and Pennington High Schools, but to certain other designated schools in Trenton not operated for profit, but not connected with the public school system, ‘by way of public carriers as in recent years.’ It is stipulated that the township authorities pursuant to the resolution agreed to pay for the then current school year the cost of transportation to such non-public schools approximately $859.80 and actually did pay part thereof.

We conclude that the resolution under review must be set aside, on the fundamental ground that the amendment of 1941 is in violation of paragraph 6 of Section 7 of Article IV of the Constitution, N.J.S.A., which reads: ‘The fund for the support of free schools, and all money, stock and other property, which may hereafter be appropriated for that purpose, or received into the treasury under the provision of any law heretofore passed to augment the said fund, shall be securely invested, and remain a perpetual fund; and the income thereof, except so much as it may be judged expedient to apply to an increase of the capital, shall be annually appropriated to the support of public free schools, for the equal benefit of all the people of the state; and it shall not be competent for the legislature to borrow, appropriate or use the said fund or any part thereof, for any other purpose, under any pretense whatever. * * *’

The facts are not in dispute. We are called upon to decide the purely legal question whether or not the township board of education in appropriating money for transportation of pupils to and from parochial schools in a neighboring city, i. e., other than public schools, contravened paragraph 6 quoted above.

There are two theories. A majority of the State courts have held such transportation unconstitutional. The leading case, supporting that theory, is the New York case of Judd v. Board of Education, 278 N.Y. 200, 15 N.E.2d 576, 118 A.L.R. 789. Typically illustrative of this theory are the following cases: State ex rel. Traub v. Brown, 6 W.W.Harr. 181, 36 Del. 181, 172 A. 835; Sherrard v. Jefferson County Board of Education, 294 Ky. 469, 171 S.W.2d 963, 968; Gurney v. Ferguson, 190 Okl. 254, 122 P.2d 1002; Mitchell v. Consolidated School District No. 201, 17 Wash.2d 61, 135 P.2d 79, 146 A.L.R. 612; and State ex rel. Van Straten v. Milquet, 180 Wis. 109, 192 N.W. 392.

The other theory (child benefit theory) that such transportation is not unconstitutional was adopted by the court of Maryland (Board of Education of Baltimore County v. Wheat, 174 Md. 314, 199 A. 628); by Louisiana (Borden v. Louisiana State Board of Education, 168 La. 1005, 123 So. 665, 67 A.L.R. 1183, and Cochran v. Louisiana State Board of Education, 168 La. 1030, 123 So. 664); and by Mississippi (Chance v. Mississippi State Textbook Rating and Purchasing Board, 190 Miss. 453, 206 So. 706).

We are not required to make a choice between these two theories, as the matter is not one of first impression in this State. In the case of Rutgers College v. Morgan, 70 N.J.L. 460, at pages 474, 475, 57 A. 250, at page 255, it was held by this court, in an opinion by Justice Van Syckel, that the constitutional provision (paragraph 20 of Article I) and the provision relating to special laws ‘does not bar instrumentalities for public education provided by the state and under its control by general laws, where the appropriation is made for such schools. They were designed as an insurmountable barrier to giving free state aid, and to donations to private or sectarian schools, and should be rigidly enforced, but they were not intended to narrow or circumscribe the legislative power to furnish facilities by general laws for public education under its own supervision.’ The decision was affirmed by the Court of Errors and Appeals in all essential features in 71 N.J.L. 663, 60 A. 205. The same principle was applied by Vice Chancellor Buchanan in Re Voorhees' Estate, 123 N.J.Eq. 142, 196 A. 365, affirmed by this court 121 N.J.L. 594, 3 A.2d 891, and by the Court of Errors and Appeals 124 N.J.L. 35, 10 A.2d 650.

The resolution under review will be set aside, with costs.

HEHER, Justice.

I dissent, and vote to dismiss the writ of certiorari.

The statute provides for the transportation of children attending schools other than public schools, not operated for profit, on routes established for the conveyance of public school children. Pamph.L.1941, p. 581, N.J.S.A. 18:14-8.

It is assailed, first, as in contravention of paragraphs 19 and 20 of Article I of the State Constitution, N.J.S.A. Paragraph 19 provides that ‘No county, city, borough, town, township or village shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, association or corporation’; and paragraph 20 directs that ‘No donation of land or appropriation of money shall be made by the state or any municipal corporation to or for the use of any society, association or corporation whatever.’

Paragraph 19 is not in terms applicable to school districts. And I cannot accept the view that the mere transportation of pupils to private schools, over a route already established for the conveyance of public school children, constitutes a gift,...

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5 cases
  • Everson v. Board of Education of Ewing Tp
    • United States
    • U.S. Supreme Court
    • 10 Febrero 1947
    ...Constitutions. That court held hat the legislature was without power to authorize such payment under the State constitution. 132 N.J.L. 98, 39 A.2d 75. The New Jersey Court of Errors and Appeals reversed, holding that neither the statute nor the resolution passed pursuant to it was in confl......
  • Everson v. Bd. Of Educ. Of Ewing Tp.
    • United States
    • New Jersey Supreme Court
    • 15 Octubre 1945
    ...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 ......
  • Fox v. Board of Ed. of West Milford Tp., L--20593
    • United States
    • New Jersey Superior Court
    • 19 Enero 1967
    ...New Jersey courts made reference to the intent of the legislation. Justice Heher in his dissent in the Supreme Court, 132 N.J.L. 98, 101, 39 A.2d 75, 77 (Sup.Ct.1945), '* * * And I cannot accept the view that the mere transportation of pupils to private schools, over a route already establi......
  • Keehn v. Laubach
    • United States
    • New Jersey District Court
    • 15 Septiembre 1944
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