Squires v. Inhabitants of City of Augusta

• Decision Date: 25 May 1959
• Citation: 155 Me. 151,153 A.2d 80
• Parties: Alden W. SQUIRES et al. v. INHABITANTS OF CITY OF AUGUSTA, H. Lloyd Carey, Mayor, and Leo F. Dunn, Treasurer.
• Court: Maine Supreme Court

Page 80

153 A.2d 80

155 Me. 151

Alden W. SQUIRES et al. v. INHABITANTS OF CITY OF AUGUSTA, H. Lloyd Carey, Mayor, and Leo F. Dunn, Treasurer.

Supreme Judicial Court of Maine.

May 25, 1959.

Goodspeed & Goodspeed, Charles A. Pierce, Sanborn & Sanborn, Augusta, for plaintiffs.

Claude J. Bourget, Augusta, Sidney W. Wernick, Portland, for defendants.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, SIDDALL and DUBORD, JJ.

TAPLEY, Justice.

On appeal. A bill in equity was brought by thirteen taxable inhabitants of the City of Augusta against the inhabitants of that city and its mayor and treasurer. The plaintiffs by their bill seek to enjoin the defendants from carrying into effect the provisions of an ordinance and order passed by the Augusta City Council on June 17, 1957 relating to transportation of pupils to and from non-public schools. The plaintiffs further seek to have this ordinance and appropriation order decreed as illegal, invalid, void and of no effect. After a hearing on the bill, answer and replication, the Justice below dismissed the bill and from this dismissal the plaintiffs seasonably appealed.

The ordinance and order upon which this litigation is based reads as follows:

'Whereas, children residing in the City of Augusta and attending the public schools pursuant to and in compliance with the compulsory school-attendance laws of the State of Maine, and who reside at distances from the schools rendering their conveyance necessary, are presently afforded, at public expense, conveyance by motor vehicle to and from public schools; and

'Whereas such conveyance is provided for the conservation of the comfort, safety and welfare of the children thus transported, and

'Whereas such conveyance is not afforded to children residing in the City of Augusta who are attending schools other than public schools under and in compliance with the compulsory school-attendance laws of the State of Maine and who reside at unreasonable distances from the schools which they attend;

'Now Therefore, in order to facilitate attendance at school pursuant to the compulsory school-attendance laws of the State of Maine, by such children for whom such conveyance is not now provided and to assist and protect such children while they are on the highway in order to attend school under the compulsory school-attendance law of the State of Maine.

'Be It Ordained By The City Council of the City of Augusta, as follows:

'Ordered, That (a) The City of Augusta shall make available conveyance by motor vehicle to any child residing in Augusta (1) who is a pupil of elementary grade attending a non-public school (including a so-called 'parochial' school) pursuant to and in conformity with the compulsory school-attendance laws of the State of Maine, and (2) who resides more than one mile from the said school which such child attends.

'(b) Such conveyance shall be so provided as to conserve the health, safety and welfare of the children transported.

'(c) The Mayor of the City of Augusta is authorized to make contracts for a period of one year, to employ such persons and to take such other and further action as may be necessary to effectuate the matters herein contained.

'(d) There is herewith appropriated from the contingent fund of the City of Augusta the sum of $250.00 to be expended for the purposes and matters herein provided during the remainder of the year, 1957.'

The pertinent portion of the City Charter of Augusta reads:

'* * * and may ordain and publish such acts, laws and regulations not inconsistent with the constitution and laws of this state, as shall be needful to the good order of said body politic; * * *.' Chap. 75, Sec. 1, P.L.1919.

The factual aspect of the case is provided by an agreed statement of facts, in addition to which there appears the testimony of the Superintendent of Schools of Augusta. It so happens that the private schools here involved are parochial schools.

The agreed statement of facts explains in great detail the supervision and operation of the parochial schools in Augusta. It is a matter of public knowledge that the parochial schools are controlled and operated by the Roman Catholic Church. They are in effect private schools as distinguished from public schools and in the view which we take of this case are within the same category as any other private schools in the State. These parochial schools meet the standards of compulsory education and the pupils may lawfully attend them in lieu of attendance at public schools.

The appellants contend (1) that the ordinance and appropriation order of June 17, 1957 is illegal and is not authorized by either the statutes of the State of Maine or the Augusta City Charter; (2) that the ordinance and order is in violation of the Constitution of the State of Maine; (3) that the ordinance and order is in violation of the Constitution of the United States. The contention of the appellees, briefly stated, is that the purpose of enactment of the ordinance and order was to provide transportation for private school children in order to conserve their health, safety and welfare, and that the City Council for the City of Augusta had authority to enact the ordinance and order as an exercise of its police power.

This case resolves itself into a single basic legal issue. Did the council have the authority to enact the ordinance by reason of police power?

It is agreed between the parties that the Legislature has not, either by charter or statute, given the City of Augusta by express terms the authority to pass any ordinance providing for the transportation of pupils to or from private schools.

The State controls the public schools and, to a substantial degree, maintains control and supervision over the private schools of the State. It compels education by providing (Chap. 41, Sec. 92, R.S.1954, as amended) that every child between the 7th and 15th anniversaries of his birth shall attend some public day school. A child may satisfy this requirement if he obtains equivalent instruction for a like period of time in a private school in which the course and method of study have been approved by the designated educational authorities.

The Constitution of Maine, Art. VIII imposes the duty upon the Legislature to promote the cause of education. This, in effect, is in the nature of a constitutional mandate. In 1876 the then members of the Law Court of Maine had occasion to give their opinion relating to the authority and responsibility of the Legislature on the subject matter of schools and education. This Opinion of the Justices is recorded in 68 Me. 582. A pertinent quotation from the opinion is in the following language:

'In the constitution, it is declared that a general diffusion of education is essential to the preservation of the liberties of the people. By its very language, it would seem that the 'general diffusion of education' was to be regarded as especially a 'benefit' to the people. If so, then the legislature has 'full power' over the subject matter of schools and of education to make all reasonable laws in reference thereto for the 'benefit of the people of this state.'' (emphasis ours).

In further support of the fact that the sovereign has maintained control of schools and education through the years is the following statement by the Justices in their opinion:

'Accordingly, from the first institution of the government to the present day, the general control of schools, and the determination of what shall be a suitable provision by the towns for their support, has been fixed by legislative enactment.' (emphasis ours).

It is important and advisable to review the statutory laws of the State, with the purpose and thought in mind of determining evidence of intention on the part of the State to maintain general control of education, as to both public and private schools. All legislation affecting the system of education in the State is compiled in Chap. 41, R.S.1954, as amended. The chapter is entitled 'Department of Education.' We propose to cite such portions of this chapter (Chap. 41) as are pertinent in demonstrating the control and supervision which the State maintains through legislative enactments over the State's educational system.

Regarding the duties of the Commissioner of Education, Sec. 11, Sub-sec. VII, as amended:

'VII. To prescribe the studies to be taught in the public schools and in private schools approved for attendance and tuition purposes, reserving to superintending school committees, trustees or other officers in charge of such public or private schools the right to prescribe additional studies, and the course of study prescribed by the commissioner shall be followed in all public schools and in all private schools approved by the said commissioner for attendance or tuition purposes; provided, however, that upon the approval by the said commissioner of any course arranged by the superintending school committee of any town, or by the trustees or other officers of any private school, said course shall be the authorized course for said town or private school; provided further, that the basic language of instruction in all schools, public and private, shall be the English language; and provided further, that American history and civil government, including the constitution of the United States and the declaration of independence, the importance of voting and the privileges and responsibilities of citizenship, shall be taught in all schools of elementary and secondary grades, both public and private, and that American history and civil government shall be required for graduation from all elementary schools, both public and private. Nothing in this section shall be construed to prohibit the teaching in elementary schools of any language as such. It is further provided that a course in geography and the natural and industrial resources of Maine shall be taught in at least one grade from 7 to 12, inclusive, in all school systems, both...