State v. Brown

• Citation: 172 A. 835,36 Del. 181
• Court: Superior Court of Delaware
• Decision Date: 19 April 1934
• Parties: THE STATE OF DELAWARE, on the relation of Carlen P. Traub, Carlen P. Traub as next friend of Carlen J. Traub and Elizabeth K. Traub, David M. Salter, and David M. Salter as next friend of Marie Salter, Joseph Grady and Joseph Grady as next friend of Edward Grady, v. H. FLETCHER BROWN, EDWIN C. HUBER, WARNER W. PRICE, NORRIS N. WRIGHT, JAMES BEEBE and ERNEST A. SIMON, being the members of and constituting the State Board of Education of the State of Delaware

172 A. 835

36 Del. 181

THE STATE OF DELAWARE, on the relation of Carlen P. Traub, Carlen P. Traub as next friend of Carlen J. Traub and Elizabeth K. Traub, David M. Salter, and David M. Salter as next friend of Marie Salter, Joseph Grady and Joseph Grady as next friend of Edward Grady, v. H. FLETCHER BROWN, EDWIN C. HUBER, WARNER W. PRICE, NORRIS N. WRIGHT, JAMES BEEBE and ERNEST A. SIMON, being the members of and constituting the State Board of Education of the State of Delaware

Superior Court of Delaware, New Castle County

April 19, 1934

Superior Court for New Castle County, No. 411, September Term, 1933.

Petition for writ of mandamus and motion to dismiss.

The relators filed a petition for a writ of mandamus requiring the State Board of Education to comply with the provisions of an Act of the General Assembly of the State of Delaware found in Volume 38, Laws of Delaware, c. 142, p. 548, providing for "transportation of pupils to and from the public schools of the State."

The motion to dismiss the petition granted.

Stewart Lynch and Charles F. Curley for relators.

P Warren Green, Attorney-General, for the Board of Education.

RICHARDS and REINHARDT, J. J., sitting.

OPINION

REINHARDT, J.

The petition avers that the three relators reside in New Castle County outside the City of Wilmington; that the relator Traub is the father of two minor children, who are pupils of and attend the daily free school of St. Peters Roman Catholic Church, which school is supported by the members of the said Catholic Church and which church is located outside the city of Wilmington; that the relator is now obliged to pay for the transportation of his said two minor children to and from their home and said St. Peters School;

That relator Salter is the father of two minor children, one of whom attends the William Penn School, a free public school of this State, and the other of whom attends said St. Peters daily free school;

That relator Salter is now obliged to pay for the transportation of said minor to and from his home and said St. Peters School;

That relator Grady is the father of a minor child who is a pupil of and attends the parochial school of St. Johns Roman Catholic Church at Hockessin, Delaware; that this is a daily free school supported by the members of St. Johns Roman Catholic Church; that the relator is now obliged to pay for the transportation of said minor child to and from his home and said St. Johns School.

The petition further avers that under the provisions of Sections 3 and 4 of the act found in Volume 38, Laws of Delaware, c. 142, pp. 548, 549 the members of the State Board of Education are required to provide and adopt rules, etc., for the carrying out of the purposes of said act, to-wit:

The free transportation of pupils attending daily free schools supported by any church and located outside the city of Wilmington.

The petition further avers that due and timely requests on behalf of the relators were made of the members of said State Board of Education to formulate said rules and carry out the provisions of said act, but that said Board then refused and still refuses so to do; and that said refusal is without warrant of law.

The prayer of the petition is that a peremptory writ of mandamus may issue commanding said defendants constituting the State Board of Education of the State of Delaware to formulate and adopt reasonable rules and regulations for carrying out the purposes of said act found in Volume 38, c. 142, § 3, p. 548, and otherwise to carry out and perform the duty imposed upon them by reason of said act.

A motion has been filed to dismiss the petition, and four reasons were urged in support thereof. They may be briefly grouped as follows:

1. "That Section 3 of the Act of the General Assembly, being Chapter 142, Volume 38, Laws of Delaware, page 548, by which the sum of five thousand dollars ($ 5,000) was appropriated for providing transportation of pupils attending schools supported by any church or religious society and which the said relators claim the State Board of Education refused to expend for such transportation of pupils attending such schools as set forth in paragraphs 3, 4, and 5 of said petition, is unconstitutional and in violation of Section 3 of Article 10 of the Constitution of the State of Delaware."

2. "That said Section 3 of said Chapter 142 of Volume 38, Laws of Delaware, is unconstitutional and in violation of the Constitution of the State of Delaware, by being repugnant to the provisions of Section 16 of Article 2 of said Constitution, in that the subject included in said third section is not expressed in the title of said Chapter 142, which said Act, by the title thereof, is limited to the transportation of pupils to and from the public schools of the State."

Section 3 of Article 10 of the Constitution of Delaware is as follows:

"No portion of any fund now existing, or which may hereafter be appropriated, or raised by tax, for educational purposes, shall be appropriated to, or used by, or in aid of any sectarian, church or denominational school."

Rewriting this provision, without changing its meaning, it will read as follows:

"No portion of any fund now existing, for educational purposes, nor any fund which may hereafter be appropriated for educational purposes, nor any fund raised by tax for educational purposes, shall be appropriated to, or used by, or in aid of any sectarian, church or denominational school."

The relators, in their petition, contend that the monies appropriated in Section 3 of the Act under consideration, come from the General Fund and not from the so-called School Fund.

They further contend that the prohibition found in Section 3 of Article 10 of the Constitution applies only to appropriations from the School Fund and does not apply to appropriations from the General Fund. That the appropriation made by Section 3 of the Act under consideration being from the General Fund is, therefore, not in violation of the constitutional prohibition.

A careful reading, however, of Section 3 of Article 10 of the Constitution reveals a much broader and more comprehensive prohibition.

When this constitutional provision is rewritten as above set forth and the several prohibitions therein are drafted into distinct clauses or sentences, one of them reads as follows:

"No portion of any fund which may be hereafter appropriated for educational purposes, shall be appropriated to, or used by, or in aid of, any sectarian, church, or denominational school."

The word "fund" has the same general meaning as "money." It is money, or its equivalent, gathered for or to be appropriated to a specific object. McCammon v. Cooper, et al., 69 Ohio St. 366, 69 N.E 658. The school fund is a fund made up in a certain manner. The appropriation of money for the transportation of pupils is, when accomplished, a fund for a certain object. The real difference between the two funds is the way by which the money is gathered together. As to the school fund, it is money collected from the proceeds of certain investments and taxes. As to the fund for the transportation of pupils, it is money obtained by...