Swart v. South Burlington Town School Dist.

• Decision Date: 03 January 1961
• Docket Number: No. 350,350
• Citation: 122 Vt. 177,167 A.2d 514
• Parties: , 81 A.L.R.2d 1300 C. Raymond SWART v. SOUTH BURLINGTON TOWN SCHOOL DISTRICT, Roscoe Bacon, John D. Donoghue, Bernice Hallett, School Directors, and individually, H. F. Tilley, Treasurer, Treasurer and individually, Frederick Reed, Vermont Attorney General.
• Court: Vermont Supreme Court

Page 514

167 A.2d 514

122 Vt. 177, 81 A.L.R.2d 1300

C. Raymond SWART v. SOUTH BURLINGTON TOWN SCHOOL DISTRICT, Roscoe Bacon, John D Donoghue, Bernice Hallett, School Directors, and individually, H. F. Tilley, Treasurer, Treasurer and individually, Frederick Reed, Vermont Attorney General.

No. 350.

Supreme Court of Vermont.

Jan. 3, 1961.

Wilson & Keyser, Chelsea, Stephen B. Richardson, Burlington, for plaintiff.

Fayette & Deschenes, Burlington, Webber, Costello & French, Rutland for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY, and SMITH, JJ.

HOLDEN, Justice.

The immediate concern of this appeal is the expenditure of public funds to meet the charges of tuition for the attendance of students at high schools operated by the Roman Catholic Diocese of Burlington, Vermont. The cause has been well argued and thoughtfully presented, in keeping with the sensitive and solemn issues that confront the Court.

The plaintiff, C. Raymond Swart, started this controversy on his asserted status of a resident taxpayer in the South Burlington Town School District. He has joined the school district, its elected officials and the Attorney General of Vermont as parties defendant to obtain a declaratory decree in equity of his rights, and the corresponding powers and duties of the defendants by the provisions of 16 V.S.A. § 793.

The South Burlington Town School District does not maintain a public high school. It has transferred the task of furnishing plant, faculty and curricula for the higher education of the youth of the town to schools beyond its control that have been selected by the parents and approved by the state department of education.

The aspects of this enactment of which the plaintiff complains provide: '(a) Each town district shall maintain a high school or furnish secondary instruction, as hereinafter provided, for its advanced pupils at a high school or academy, to be selected by the parents or guardian of the pupil, within or without the state. The board of school directors may both maintain a high school and furnish secondary instruction elsewhere as herein provided as in the judgment of the board may best serve the interest of the pupils.

'(b) Each town school district shall pay tuition per pupil per school year as billed, but not in excess of $325.00 unless authorized by a vote of the town school district, but in no case shall the tuition exceed the cost per pupil per year for the maintenance of such school for the previous year.'

Acting according to the terms and formula specified in the statute the defendant school district and its officers, during the years from 1952 to 1958 authorized and made payments in varying amounts to the Cathedral High School of Burlington. This institution ceased operations at the close of the first semester of the 1958-59 school year. Its land, buildings and equipment are owned by the Roman Catholic Diocese of Burlington. During the time of operation as an educational establishment, it was conducted as a religious denominational high school of the Roman Catholic Faith.

The Rice Memorial High School, located at South Burlington, opened its courses of instruction at the time of the closing of Cathedral High School on January 30, 1959. Like Cathedral, this school is owned by The Diocese of Burlington. In the 1958-59 school year, the defendants caused the sum of $19,687.50 to be expended and paid directly to the Rice Memorial High School, for the attendance of South Burlington students at this high school.

Mount Saint Mary's Academy is located in the city of Burlington. The land, buildings and equipment are owned by The Sisters of Mercy of The Diocese of Burlington. The defendants have paid tuition to this school, in varying amounts since 1952. The payment for the 1958-1959 school year was $2,025.

The chancellor made detailed findings concerning the specific payments to each of these schools and the corresponding tax payments made by the plaintiff over the same period. It is made to appear that the taxes collected from the plaintiff became a part of the public school funds of the South Burlington Town School District which were disbursed by the defendant officials to the institutions named. The chancellor specifically found that these disbursements were in payment of tuition and not for scholarships nor as awards of merit.

Mount Saint Mary's Academy and Rice Memorial High School were determined by the chancellor to be religious denominational high schools of the Roman Catholic Faith, controlled and principally supported by the Roman Catholic Church. Instruction in the religion of that denomination is included in the curricula of both institutions, and is a required subject for students of that faith. There is no requirement that students of other denominations attend the instruction in religion although some students in this category have elected to do so.

Each of the schools concerned has furnished the Department of Education for the State of Vermont the information relating to the cost per pupil in compliance with the statute. The state department of education has established no policy or regulation to specify whether tuition payments under the statute are to be made to the parents of the students receiving instruction or to the school which furnishes the courses of study.

The provisions of 16 V.S.A. § 799 forbid a town school district to pay tuition of a student receiving advanced instruction except to a high school or academy approved by the state board of education. Cathedral High School, Mount Saint Mary's Academy and Rice Memorial High School have received approval from the state board of education as to scholastic standards and educational facilities.

Despite this approval, the plaintiff protests and seeks to have further payments of tuition to these schools enjoined. At the hearing, some of the parents of children attending Rice Memorial High School petitioned and obtained leave to intervene as parties defendant. The intervenors D'Acuti and Charbonneau are of the Roman Catholic Faith. The plaintiff prevailed in the Court of Chancery for Chittenden County. The defendants and intervenors appeal.

The facts reported by the chancellor are not challenged by any of the appellants. The appeal centers on the declaration of the decree that 'payment of tuition by the South Burlington Town School District to sectarian high schools is porhibited by the First and Fourteenth Amendments to the United States Constitution and Article 3, Chapter 1 of the Vermont Constitution.'

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grivances. Amendment 1 of the Constitution of the United States.

That all men have a natural and unalienable right, to worship Almighty God, according to the dictates of their own consciences and understandings, as in their opinion shall be regulated by the word of God; and that no man ought to, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of his conscience, nor can any man be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments, or peculia(r) mode of worship; and that no authority can, or ought to be vested in, or assumed by, any power whatever, that shall in any case interfere with, or in any manner controul the rights of conscience, in the free exercise of religious worship. Nevertheless, every sect or denomination of christians ought to observe the sabbath or Lord's day, and keep up some sort of religious worship, which to them shall seem most agreeable to the revealed will of God. Article 3rd, Chapter 1, Constitution of Vermont.

The record certified to this Court includes the written opinion of the chancellor which states his analysis of the issues relating to religious liberty and separation of Church and State as defined in these provisions of the state and federal constitutions. In this memorandum the court observed that all parties had seemingly agreed, and the chancellor adopted the theory that the constitutional provisions of the paramount law of Vermont and of the United States establish a common protection, with the effect that a violation of one infringes upon the other. Noting that the issue presented in relation to the Vermont Constitution has not been previously reported in the decisions of this Court, the court below resorted exclusively to the First Amendment and the decisions of the United States Supreme Court. (See Donoghue v. Smith, 119 Vt. 259, 267, 126 A.2d 93, where decision of the constitutional question was not required.)

There has been no objection to the comparison, nor to the treatment of the problem adopted in the court of chancery. We are not at liberty to belabor the point against established appellate procedure. Perkins v. Vermont Hydro-Electric Corp., 106 Vt. 367, 417, 177 A. 631. But since the objective of these proceedings is to obtain a declaration of constitutional rights and limitations, the variation in historical background and mode of expression in the state and federal provisions is not to be overlooked.

In Vermont, the militant sense of freedom which directed its founders to be the first to write a prohibition against slavery in the establishment of the independent state in 1777, was somewhat reserved in expression of religious liberty. Thus it was that in the original Article III, the declaration 'that no man ought, or of right can be compelled to attend any religious worship, or erect, or support any place of worship, or maintain any minister, contrary to the dictates of his conscience' was followed by the limitation--'nor can any man who professes the protestant religion, be justly deprived or abridged of any...