Opinion of the Justices

• Decision Date: 06 October 1967
• Docket Number: No. 5683,5683
• Citation: 233 A.2d 832,108 N.H. 268
• Parties: OPINION OF THE JUSTICES. Request of Governor and Council,
• Court: New Hampshire Supreme Court

Page 832

233 A.2d 832

108 N.H. 268

OPINION OF THE JUSTICES.

Request of Governor and Council, No. 5683.

Supreme Court of New Hampshire.

Submitted Aug. 31, 1967.

Answer Returned Oct. 6, 1967.

William M. Smith, Hanover, also for affirmative answers.

Joseph P. Nadeau and Ross V. Deachman, of Burns, Bryant, Hinchey & Nadeau, and Maurice A. Broderick, Dover, and associate counsel, for Roman Catholic Bishop of Manchester and United States Catholic Conference, for negative answers.

The following resolution was adopted by the Governor and Council August 15, 1967 and filed in this court on August 17, 1967:

'WHEREAS, the General Court in 1963 enacted legislation relating to the conduct of sweepstakes races and the sale of tickets thereon, as set forth in Laws 1963, Chapter 52; and

'Whereas, the General Court by Laws 1965, Chapter 239:15 amended in certain respects, RSA 284:21-j, as inserted by Laws 1963, Chapter 52; and 'Whereas, the General Court by Laws 1967, Chapter 421:1 amended RSA 284:21-j as inserted by Laws 1963, Chapter 52:1 and amended by Laws 1965, Chapter 239:15, so that the said section as amended reads as follows: '284:21-j Establishment. The state treasurer shall credit all moneys received from the sweepstakes commission, and interest received on such moneys, to a special fund from which he shall pay all expenses of the commission incident to the administration of this subdivision and shall pay out on December 15 of each year to the school districts of the state on a flat grant per resident pupil basis and to the chief administrative officer of nonpublic schools on a flat grant per elementary and secondary pupil basis, who is a resident of the state any balance in said special fund. Such grants shall be used for educational purposes and no part of said special fund shall be diverted by transfer or otherwise to any other purpose whatsoever;' and

'Whereas, Paul E. Farnum, Commissioner of Education, by letter dated July 24, 1967, to the Governor and Council has raised certain questions concerning Laws 1967, Chapter 421, particularly relating to the legality of payment to parochial and certain private schools of a proportionate share of sweepstakes proceeds; and

'Whereas, we are in doubt as to the distribution of said proceeds, in view of the provisions of Part II, Article 83 of the New Hampshire Constitution; and

'Whereas, the preamble of Laws 1967, Chapter 421 recites that '* * * parochial and certain private schools in the state of New Hampshire contribute greatly to lessening the burden of the tax payers in supporting public education and * * * there is great sentiment and feeling that the general public of the state of New Hampshire should in some way alleviate economic burdens of these parochial and private schools which are not privately endowed * * *', but the amendment of RSA 284:21-j by Laws 1967, Chapter 421 does not define a privatley endowed school, does not specify to what extent a school can receive financial support from sources other than taxes and yet be considered not privately endowed, and does not indicate whether sweepstakes proceeds are to be distributed to the numerous private kindergartens and special schools that are not privately endowed; and

'Whereas, in view of all the circumstances we are in doubt as to the nonpublic schools which are entitled to participate in the distribution of said proceeds; and

'Whereas, in view of all the circumstances we are in doubt as to the legality of payment to parochial and certain private schools of a proportionate share of said proceeds; and

'Whereas, the resolution of such doubts is of great importance to us in the performance of our executive duties;

'Now, Therefore, B it

'RESOLVED, by the Governor and Council assembled in Executive Session, that the Justices of the Supreme Court be respectfully requested under the provisions of Part II, Article 74 of the New Hampshire Constitution to give their opinion upon the following important questions of law:

'1. Does Part II, Article 83 of the New Hampshire Constitution, which provides, in part, that '* * * no money raised by taxation shall ever be granted or applied for the use of the schools or institutions of any religious sect or denomination * * *' prohibit the use of sweepstakes money as provided by Laws 1967, Chapter 421?

'2. If the answer to question No. 1 is in the negative, does Laws 1967, Chapter 421 conflict with or violate any other provisions of the New Hampshire Constitution?

'3. If the answers to questions Nos. 1 and 2 are in the negative, are sweepstakes proceeds state or public funds which the First Amendment of the United States Constitution would prohibit from being distributed to parolchial or private schools?

'4. If the answers to questions Nos. 1, 2 and 3 are in the negative does Laws 1967, Chapter 421 require that a nonpublic school to be eligible to participate in the distribution of sweepstakes proceeds be one which is not privately endowed?

'5. If the answer to question No. 4 is in the negative, what criterion is to be used to determine eligibility?

'6. If the answer to question No. 4 is in the affirmative, what criterion is to be used to determine when a school is not privately endowed?

'7. If the answer to question No. 4 is in the affirmative, to what extent can a school receive financial support from sources other than taxes and yet be considered not privately endowed?

'8. If the answer to question No. 4 is in the affirmative, are the numerous private kindergartens and special schools that are not privately endowed to be included as eligible participants in the distribution of sweepstakes proceeds?'

The following answer was returned:

To his Excellency the Governor and the Honorable Council:

The undersigned Justices of the Supreme Court submit the following answers to the questions contained in your resolution filed in this court on August 17, 1967.

You have submitted several questions relating to the amendment to RSA 284:21-j enacted by the General Court as Laws 1967, 421:1 which provides for the distribution of certain revenue received from the sweepstakes to nonpublic elementary and secondary schools as well as to public school districts. Since our answer to question three makes it unnecessary to answer any of the other questions we proceed directly to it. Question three reads in part as follows: '(A)re the sweepstakes proceeds state or public funds which the First Amendment of the United States Constitution would prohibit from being distributed to parochial or private schools?'

Since the amendment provides for distribution of money to all nonpublic elementary and secondary schools this would include parochial and other religiously oriented schools as your question recognizes. This intention is expressed in the preamble to Laws 1967, chapter 421.

While nonpublic schools, other than parochial and religiously oriented schools, would benefit under the amendment it is common knowledge that parochial schools predominate among the nonpublic schools that 'lessen the burden of the taxpayers in supporting public education' which the amendment seeks to aid. Laws 1967, c. 421 (preamble).

Parochial schools as that term is generally understood in this state are an integral part of a religious organization and an important purpose of these schools is to advance the aims and purposes of the Church and its ministry through religious education as part of the regular program of instruction. Any financial aid to the schools is of necessity therefore aid to the Church and to the teaching of religion.

We wish to make it very clear that we intend in no way to disparage the lofty goals of church-sponsored schools. Our task is to decide a constitutional issue and our opinion relates to that issue only. It is necessary however for us to recognize the relationship between the Church and parochial schools. This is important to the determination of the constitutional issue because the First Amendment to the Constitution of the United States provides in part that 'Congress shall make no law respecting an establishment of religion * * *.'

When originally adopted the First Amendment applied only to the Federal Government and its restrictions were applicable only to Congress. After the adoption of the Fourteenth Amendment it became applicable to the states and the prohibitions directed at Congress are now directed also at all state legislatures and local legislative bodies. Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; School District of Abington Township, Pa. v. Schempp, 374 U.S. 203, 216, 83 S.Ct. 1560, 10 L.Ed.2d 844.

The Supreme Court of the United States has stated that under the prohibitions of the First Amendment neither the Federal Government nor a state 'can pass laws which aid one religion, aid all religions, or prefer one religion over another.' Everson v. Board of Education, 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711, 168 A.L.R. 1392. See also School District of Abington Township, Pa. v. Schempp, 374 U.S. 203, 216, 83 S.Ct. 1560, 10 L.Ed.2d 844. In Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954, the Court said, 'Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education * * *.' In that case the Court upheld a New York statute permitting 'released time' for pupils to obtain religious instruction off the public school premises. The Court pointed out however that the program involved neither religious instructions in public schools 'nor the expenditure of public funds.' Id., 308-309, 72 S.Ct. 681. The Court with but one dissenting vote, had previously held invalid under the First Amendment an Illinois statute which provided for 'released time' for religious instruction to be conducted on the public school premises by Protestant teachers, Catholic priests and a Jewish rabbi, because school buildings and a school system supported by public funds were being...