Gurney v. Ferguson
| Decision Date | 02 December 1941 |
| Docket Number | 29754. |
| Citation | 122 P.2d 1002,190 Okla. 254,1941 OK 397 |
| Parties | GURNEY et al. v. FERGUSON et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied March 10, 1942.
Syllabus by the Court.
1. The term "sectarian institutions" as employed in section 5, article 2 of the Oklahoma Constitution Okl.St.Ann., includes sectarian or parochial schools.
2. A legislative act purporting to authorize or direct the payment or expenditure of public funds for transporting pupils to and from school is an enactment in the exercise of the duty and power of the state to maintain the public schools of the state under direction and authority of section 5, article 1 of the State Constitution, Okl.St.Ann. It authorizes and directs payment or expenditure of the public funds for school purposes and is not enacted in the exercise of the police or other power.
3. Any legislative enactment which has the effect of authorizing or requiring the use of public property or the expenditure of public school funds in transporting pupils of a sectarian school to and from such school is violative of section 5 article 2 of the Constitution of Oklahoma, Okl.St.Ann. For those reasons article 11, chapter 34 S.L.1939, 70 Okl.St.Ann § 1196, in so far as it refers to parochial schools, is unconstitutional and void.
Appeal from District Court, Oklahoma County; Ben Arnold, Judge.
Mandamus proceeding by Mike Gurney and others against J. R. Ferguson to compel the defendants by use of a public school bus, and at the expense of public school funds, to transport certain pupils to and from a parochial school in accordance with certain statute. From an adverse judgment, the plaintiffs appeal.
Judgment affirmed.
W. F. Wilson, Mont F. Highley, T. K. Quillin, W. F. Wilson, Jr., Mont F. Highley, Jr., Leo Considine, J. Frank Martin, and Frank C. Love, all of Oklahoma City, and T. Austin Gavin, of Tulsa, for plaintiffs in error.
Dudley, Hyde, Duvall & Dudley, of Oklahoma City, and Dennis Wright, of Harrah, for defendants in error.
The question is whether article 11, chapter 34, S.L. 1939, 70 Okl.St.Ann. § 1196, is constitutional.
The same provides: "That whenever any school board shall, pursuant to this Section or to any law of the State of Oklahoma, provide for transportation for pupils attending public schools, all children attending any private or parochial school under the compulsory school attendance laws of this State shall, where said private or parochial school is along or near the route designated by said board, be entitled equally to the same rights, benefits and privileges as to transportation that are so provided for by such district school board."
It is here sought to compel the school district officials, in conformity with said act, and by use of the public school bus and at the expense of the public school funds, to transport certain pupils on their way to and from a certain admittedly parochial school for the purpose of attending such school.
We examine the law to determine whether the trial court erred in its conclusions that the legislative act is violative of section 5, article 2 of the Oklahoma Constitution, Okl.St.Ann.
Such constitutional provision is quoted as follows: "No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such."
Plaintiffs in error base a goodly portion of their argument upon the premise that the above-quoted provision of our Constitution says nothing about schools. The suggestion is made that therein lies a material distinction between such provision of our Constitution and certain constitutional provisions of other states which have there been considered in connection with similar questions. The net result of the suggestion would seem to be that the term "sectarian institution" does not include a sectarian or parochial school, leading to the ultimate result that our said constitutional provision did not inhibit the use of public funds directly for the maintenance of such a school.
We would not be inclined to accept that premise even if compelled to rely solely upon the phraseology of this particular provision. It seems to us that it would be commonly understood that the term "sectarian institution" includes a school or institution of learning which is owned and controlled by a church and which is avowedly maintained and conducted so that the children of parents of that particular faith would be taught in that school the religious tenents of the church.
When the interpretation suggested by plaintiff in error leads to the result that the framers of our Constitution did not intend to prohibit the direct expenditure of public funds in support of sectarian schools, then the complete error of that contention is demonstrated. It is provided in section 5, article 1 of the Constitution, that the schools which the state is authorized and directed to establish and maintain shall be "free from sectarian control." We feel there is no doubt that section 5, article 2, supra, prohibits the use of public money or property for sectarian or parochial schools.
It is urged that the present legislative act does not result in the use of public funds for the benefit or support of this sectarian institution or school "as such;" that such benefit as flows from these acts accrues to the benefit of the individual child or to a group of children...
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