Board of Education v. Wheat

³¹⁶ Bond, C. J., delivered the opinion of the Court. The infant appellee, a pupil at a Roman Catholic parochial school in Baltimore County, the Immaculate School, has been granted the writ of mandamus to compel the Board of Education of the county to carry him to and fro between his home and the school, in accordance with a public local law of the county (Acts of 1937, chapter 185), ordering transportation of such a child in a bus provided for public school children. The board has appealed, and on its appeal questions the validity of the provision on several grounds, but principally that, as the school he attends is a private school, and he is attending it, rather than the public school, for the religious training of his parents’ choice, the promotion of his convenience in doing so is in effect a diversion of public school funds to a private purpose, and a contribution to the maintenance of a place of worship in contravention of the Declaration of Rights of the State. The statutory provision (Acts 1937, ch. 185, p. 321, sec. 146A), is that all children who attend schools in the county which do not receive state aid, and who reside on or along or near the public highways on which there is now or hereafter operated a public school bus provided by the Board of Education for transporting children to and from the public schools, shall be entitled to transportation on the same buses from a point on the highway nearest or most accessible to the home of the child to a point nearest or most accessible- to its school, without changing the route of the bus, upon the same terms as those provided for public school children.

A second section of the statute (Acts 1937, ch. 185, p. 322, sec. 146B) provides for the raising of money necessary, not exceeding $15,000, for the additional expense, and authorizes the establishment of additional bus routes. Funds for the purpose have been appropriated by the county commissioners, but the board, questioning the validity of the enactment, has declined to administer them. To the petition for the writ the board answered setting up its contentions, the petitioner demurred to the answer, ³¹⁷ and the demurrer was sustained; and no further proceedings being taken, the writ was ordered to issue. There is no dispute of fact.

It is conceded that this child, who lives about four hundred feet from a road along which a public school bus passes, and whose school is about three miles on the road toward Towson where the public school is situated, is in all respects within those entitled to transportation under the questioned statute, if it is valid. The school does not receive state aid. It is conducted in connection with a Roman Catholic church, the Immaculate Church, its pupils are taught and disciplined by sisters of that church, and during school sessions they are given instruction in the Roman Catholic faith, and at times attend for worship in the church. Compliance of the title of the act with the constitutional requirement that 'the subject should be described in it is questioned.

Constitution, art. 3, sec. 29. It is, in brief, “An Act to add two new sections to Offutt’s Revised Code of the Public Local Laws of Baltimore County * * * to follow Section 146 * * * and to be known as Section 146A and Section 146B, directing the Board of Education of Baltimore County to provide certain transportation for children attending certain schools in Baltimore County, and directing the County Commissioners * * * 'to appropriate certain funds.” The appellee refers to the rule that a description merely by designation of article and sections added to the Code may be sufficient. Dean v. Slacum, 149 Md. 578 , 132 A. 73 . But this title does not leave the description at that; it undertakes to give more information and the objection is that what is given is misleading.

Buck Glass Co. v. Gordy, 170 Md. 685, 688 , 185 A. 886 . It is objected that “certain schools” in a statute, especially one appropriating certain public funds, would lead to an assumption that public schools were dealt with in the body of the enactment. The facts that provision for public schools only is the concern of the Legislature, and that in common understanding “schools” in any governmental provision would regularly be public schools, are urged as having an effect ³¹⁸ to conceal, under this title, a provision for conveying children to and from private and parochial schools. State v. King, 124 Md. 491, 498 , 92 A. 1041 ; Culp v. Chestertown, 154 Md. 620, 625 , 141 A. 410 ; Buck Glass Co. v. Gordy, supra.

The question is one of degree of likelihood of leading to a misconception of the enactment, and the court has come to the conclusion that in this instance the likelihood is not so great as to render the title insufficient. Culp v. Commissioners, supra. For testing conformity of a title to this constitutional requirement, there is enjoined upon the courts a disposition to uphold rather than to defeat the enactment. State v. Norris, 70 Md. 91, 96 , 16 A. 445 ; Barron v. Smith, 108 Md. 317, 327 , 70 A. 225 .

A second ground of objection is that of a violation of the prohibition in article 3, section 33, of the Constitution against passage of a special law for any case for which provision has been made by an existing general law. The present local act is in the argument considered to be a special one, excluded by the provisions in article 77 of the Code of Public General Laws concerning expenditures by the board for school purposes, and the transportation of pupils of schools. Section 56 of article 77 requires the Board of Education of each county, subject to the rules and regulations of the State Board, with the advice of the County Superintendent, to prepare a budget, “showing the unexpended balance on hand or in [its] treasury for each specific purpose allowed and levied by the County Commissioners at the preceding levy the amount of money needed for permanent improvements and repairs, and for current repairs, furniture for old buildings, maintenance and support of schools during the succeeding school year, also the estimated total amount that will be received from the State, which shall be used for paying teachers’ salaries and purchasing text-books, materials of instruction, and school supplies; and finally the amount that will be needed to be raised by local taxation.” Section 50 was passed as an incident to an authority to consolidate schools previously ³¹⁹ existing, adding to that authority a provision that the county board of education “shall pay, when necessary, for the transportation of pupils to and from such consolidated schools.” The court does not see that these sections must exclude subsequent local legislation, otherwise valid, for conveyance of private school children. Another subject of expense might properly be added to those enumerated, and might be added for the one county if the General Assembly should find reason for .it.

The constitutional prohibition now considered is not against local laws but against special laws. County Commissioners of Dorchester County v. Meekins, 50 Md. 28, 39 . The requirement would be a special law only if it should be regarded as a provision for selected persons or institutions. State v. Baltimore County Commissioners, 29 Md. 516, 519 ; Dasch v. Jackson, 170 Md. 251, 261 , 183 A. 534 .

And if it is a special law by that definition, its subject matter does not seem to the court to have been provided for in the existing general law, section 56, with the consequence that the special law is prohibited. Nor is an exclusive covering of the subject found in section 50. Being part of a provision for consolidating the schools, it is itself one of limited scope and purpose, that is, to obviate the disadvantage of distance of the centralized schools from many pupils. It does not attempt to cover the whole subject of conveyance of school children, so as to exclude extension of the use of buses by a subsequent local law.

Does it, then, as a provision for private school children, violate the prohibition against the use of funds for private purposes in articles 15 and 23 of the Declaration of Rights, and violate that of the Fourteenth Amendment to the United States Constitution by taking money of the taxpayers for the use of private institutions? Baltimore & Eastern Shore R. Co. v. Spring, 80 Md. 510 , 31 A. 208 ; Citizens’ Sav. & Loan Assn. v. Topeka, 20 Wall. 655 , 22 L. Ed. 455 ; Jones v. City of Portland, 245 U. S. 217 , 38 S. Ct. 112 , 62 L. Ed. 252 ; Green v. Frazier, 253 ³²⁰ U. S. 233, 40 S. Ct. 499 , 64 L. Ed. 878 . The actual provision is more narrowly limited than the question might suggest. It is, in substance, that the buses provided to transport public school children shall also accommodate children of the private schools entering and leaving along the road.

No buses are to be provided for private school children especially, although an increase in the number of all children to be carried might, of course, necessitate an increase' in the number and expense of conveyances. All the conveyances referred to, even in the authorization of new routes in the second section, are those described in the first section, the public school buses. And the accommodation of private school children is an incidental use of provision made for an unquestioned public purpose. It is not a use of surplus space that is provided for, within the principle applied in permitting private use of schools and other public buildings.

Gottlieb-Knabe Co. v. Macklin, 109 Md. 429 , 71 A. 949 ; Cost v. Shinault, 113 Ark. 19 , 166 S. W. 740 ; 63 A. L. R. 616; State v. Cleveland, 125 Ohio St. 230 , 181 N. E. 24 . It is a use without regard to extra space, and money is to be provided by the taxpayers for an expected expense from it. And if that use is a private one, then there are limits to the application of public money and facilities to it. Gottlieb-Knabe Co. v. Macklin, supra; Citizens’ Sav. & Loan Assn. v. Topeka, 20 Wall. 655 , 22 L. Ed. 455 ; Jones v. City of Portland, 245 U. S, 217, 38 S. Ct. 112 , 62 L. Ed. 252 ; Green v. Frazier, 253 U. S. 233 , 40 S. Ct. 499 , 64 L. Ed. 878 .

Whether it is private within that rule appears to be, finally, a question whether it is in furtherance of a public function in seeing that all children attend some school, and in doing so have protection from traffic hazards. School attendance is compulsory, and attendance at private or parochial schools is a compliance with the law. Code, art. 77, secs. 220 and 221, 14, 21 and 228. For the board it is argued that the act cannot be classed as a measure of protection from traffic hazards because it affects only a small portion of private school children ³²¹ equally subject to those hazards.

As the buses are not to convey to any public schools other than the consolidated ones, there is no protection given to children attending others. Neither is there any given to children attending schools receiving state aid, those attending one school supported by the State, those who do not reside along routes of the public school buses, or those whose schools are within a mile of their homes. And to the reply that these are the limitations on the buses and their routes, the public school buses being availed of to convey all children within the class along those routes, it is argued further that the public school buses themselves are not supplied for protection against traffic hazards, but only, as stated, to overcome the disadvantage of increase of distance for many pupils as a consequence of the consolidation of schools. The limit on the originating object would not, however, prevent public utilization of any further advantages that might be developed from use of the buses.

In other words, if the buses to and from the consolidated schools have been found valuable in later days as protections against traffic hazards, they may be dealt with as such protections. And the great increase in traffic dangers to children since the enactment of section 50 of article 77, in 1916, might well be regarded as having given the buses the newer purpose. With that purpose possible, then, is the act to be regarded as a provision for supplying the public school facilities to private schools? The question includes provision to parochial schools, one kind of private schools.

Courts elsewhere, which in cases cited to us have dealt with somewhat similar questions, have not agreed in their views. In Cochran v. Louisiana State Board of Education, 281 U. S. 370 , 50 S. Ct. 335 , 74 L. Ed. 913 , the Supreme Court of the United States decided that an appropriation of taxpayers’ money to provide textbooks to children of private schools did not violate the Fourteenth Amendment, mainly because the books were, by the terms of the authorizing statute, to be supplied directly to the children. In the state court from which ³²² the appeal was taken three of the seven judges sitting dissented from that view. Borden v. Louisiana State Board, 168 La. 1005 , 123 So. 655 .

Compare Synod of South Dakota v. State, 2 S. D. 366, 50 N. W. 632 ; State v. Matlock, 16 Nev. 373 . And it has gone without question since. Possible difficulties in distinguishing supply of other school facilities, and the ease of evasion of the constitutional prohibition by the mere form of appropriating money to children rather than to private institutions, have been remarked. See A. A. Bruce, in 25 Illinois Law Rev. 547.

There have been decisions in conflict, especially in cases of facilities supplied to religious institutions. State ex rel. Traub v. Brown, 6 W. W. Harr. 181, 36 Del. 181 , 172 A. 835 ; State v. Milquet, 180 Wis. 109 , 192 N. W. 392 ; Smith v. Donahue, 202 App. Div. 656 , 195 N. Y. S. 715; Otken v. Lamkin, 56 Miss 758. In two cases in courts of inferior jurisdiction (Lewis v. Board of Education, 275 N. Y. 480 , 11 N. E.

(2nd) 307, appeal dismissed Id., 275 N. Y. 544 , 11 N. E. (2nd) 743, and Judd v. Board of Education, 164 Misc. 889 , 300 N. Y. S. 1037) transportation of private school children at public expense has been found valid. It is, however, not found necessary to consider in the present case whether text books or any facilities other than that of transportation of the children may be supplied, for they may be differentiated. Starting with the interest which the State is acknowledged to have in seeing that all children of school age acquire an education by attending some school, and the fact that they are complying with the law in going to such a school as the parochial school involved in this case, their accommodation in thé buses appears to the court to be within the proper limits of enforcement of the duty imposed.

Compliance having been made dangerous in a much greater degree, removal of the danger to any extent would seem to be within the same public function. Even though the statute ordering it may be open to another interpretation, if the transportation with this object is a constitutional action, the statute must be construed as having the object, ³²³ because the court is required to admit the constitutionality of an act of assembly if it can be brought within the exercise of any constitutional power. Keiningham v. Blake, 135 Md. 320, 322 , 109 A. 65 ; Painter v. Mattfeldt, 119 Md. 466, 472 , 87 A. 413 . The danger of perversion to private purposes may be admitted, but the Legislature is primarily entrusted with the care of that, and the courts have no duty in relation to it unless and until a perversion should be obvious.

The fact that the private schools, including parochial schools, receive a benefit from it could not prevent the Legislature’s performing the public function. This conclusion that the act must be regarded as one within the function of enforcing attendance at school, renders it unnecessary to consider separately the objection that a religious institution is aided. Art. 36, Declaration of Rights. The institution must be considered as aided only incidentally, the aid only a by-product of proper legislative action.

One further objection is that the accommodation of private school children violates the requirement of section 3 of article 8 of the State Constitution, that, “The School Fund of the State shall be kept inviolate, and appropriated only to the purposes of education.” Apart from any other reason, this interprets “purposes of education” too narrowly. It is not denied that transportation comes within the purposes for which the public money may be expended when public school children are carried, and that must be equally true when private school children are carried, if carrying them is found to be within the public functions. Order affirmed, with costs. Parke, J., filed a dissenting opinion as follows, in which Mitchell and Johnson, JJ., concurred.

The writer dissents from the grounds on which the majority of the court holds Chapter 185 of the Acts of 1937 constitutional, and believes his reasons should be stated: Before the enactment of chapter 185 of the Acts of 1937, the transportation of children to schools in Baltimore county was authorized and controlled by section 50 of article 77, title “Public Education,” of the Code of Public General Laws, which provided that “The county board of education shall consolidate schools, wherever in ³²⁶ their judgment it is practicable, and arrange, when possible without charge to the county, and shall pay, when necessary, for the transportation of pupils to and from such consolidated schools.” Vol. 2, p. 2455. The policy thus inaugurated began with the passage of chapter 584, section 21, of the Acts of 1904, which introduced the consolidation of public schools, pursuant to the theory that their pupils might be taught by a larger and better qualified corps of teachers, under more convenient, healthful, efficient and superior educational conditions and advantages, in a large school building at a central location. Code, art. 77, sec. 50. The effect of the consolidation was to close numerous local schools, and to require their former pupils to attend the substituted consolidated school at a distance from their neighborhood.

Thus the attendance of many children was rendered difficult and burdensome upon both pupil and parents In order to solve the problem thus created and alleviate the hardship entailed, it became advisable or necessary to furnish transportation of the pupils to the consolidated schools, within the constitutional requirement that there shall be established throughout the State a thorough and efficient system of free Public Schools; and that the General Assembly shall provide by taxation or otherwise for their maintenance. Art. 8 of the Constitution of Maryland, section 1. It should be observed that the statute authorized transportation only for that portion of the pupils who attended the consolidated public schools. The regulations of. the Board of Education of Baltimore County further restricted this statutory potential class to the children who might live a mile or more from the consolidated school which they attended.

So, pupils who do not attend consolidated public schools must walk or use such means of transportation as they may procure or have privately provided, no matter how great the distance to be traveled. And the pupils who are taught at consolidated schools but who live within the radius of a mile are likewise not supplied with free public transportation, and ³²⁷ must get to school as best they may. At the time chapter 185 of the Acts of 1937 became effective, the Board of Education of Baltimore County also furnished transportation to pupils who attended ten public high schools of the county, for which a charge was made to each pupil carried. The total number of pupils, white and colored, of high and elementary schools so transported was 6,941, at a net transportation cost of $108,523.31.

Hence, a great number of pupils in Baltimore County, who were not taught in a consolidated school or a high school, were not supplied with transportation, and walked to the public schools on the highways or were provided with their own means of transportation. It is evident that the safety of the children on the highways was not the motive which induced the General Assembly in 1904 to authorize free transportation, since the conditions of the grant confined the privilege to a single class of pupils, whose membership was limited to those pupils only who were taught in the consolidated schools. The large number of pupils who attended either the district or unconsolidated schools would not have been excluded from participation in the provision for free transportation if the safety of children on the highway had been the object. The rational and consistent purpose was clearly to relieve the former pupils of district schools of the hardship imposed by the increased distance to the more remote consolidated school into which their district schools had been merged.

In illustration of this conclusion is the regulation that free transportation is not afforded even to the pupils of a consolidated school,, unless the pupils be a mile or more away from the consolidated school. The inconvenient or excessive .distance of certain affected pupils from an available school that would result from consolidation, and not their safety, was thé origin of free transportation to the consolidated school. This genesis of this provision of the statute has been commonly accepted during the period following the passage of the Act of 1904. Nor does the public local law of Baltimore County now under consideration disclose any ³²⁸ other motive.

Its purpose, in the language of the Act, is to provide that all children, who attend, in Baltimore County, schools which do not receive State aid, and who reside on or along or near to the public highways of Baltimore County on which there is now or hereafter operated a public school bus or conveyance provided by the Board of Education of Baltimore County for transporting children to and from the public schools of Baltimore County, shall be entitled to transportation on the said buses or conveyances, and the same shall be provided for them by the said Board of Education, subject to specified conditions, from a point on the said public highways nearest or most accessible to their respective schools, without changing the routes of said buses or conveyances now or hereafter established by said Board of Education of Baltimore County for transporting children to and from the public schools and such transportation shall be provided by the Board of Education, as aforesaid, for all the children attending the schools described, upon the same terms and conditions as now or as may be hereafter established by the Board of Education of Baltimore County for children attending public schools. In order to provide for the expenses of the carriage of the additional pupils an annual appropriation of $15,000 is made. The Act further provides for the establishment of new bus routes for the transportation of children not receiving State aid. It empowers the Board of Education to fix the terms and conditions of transportation, provided that, in no event, shall the amount charged children attending such schools for using the buses or conveyances be greater or less than the amount charged children attending the public schools for the same kind of transportation.

The plain and unmistakable purpose of this local legislation is to provide for pupils'of private and parochial schools (1) free transportation in buses and conveyances in operation on the routes established for conveying pupils to consolidated public schools in Baltimore County ³²⁹ and (2) transportation for a like reward in buses and conveyances in operation on the routes established for carrying pupils to public high or other schools. Neither in the origin and course of this local legislation through the General Assembly, nor in its terms nor its objects, is there any declaration or implication that the enactment was designed to protect the pupils of private and parochial schools from the perils of pedestrians on public ways. It is true that an act will not be declared unconstitutional, if it may be supported upon any sound theory of constitutional power; and, so, the argument is here advanced that the legislation is within the police power of the State. It is maintained that if the buses or conveyances have been found in these times to be a protection to pupils against traffic hazards in going to and from the consolidated schools, then these hazards are similarly encountered by children who, in obedience to the statutory necessity of acquiring an education by attendance at some accredited school, are travelers upon the public highways in going to and from approved private and parochial schools; and the removal of these dangers to any extent with reference to these pupils of private and parochial schools would be the performance of the same public function as is done in the case of the pupils who attend the public consolidated and high schools.

Thus, it is affirmed, the statute is a valid exercise of the police power. While it must be conceded that the sovereign state has the inherent and reserved police power to enact laws to promote the good order, safety, health, morals and general welfare of society, nevertheless, this power must be exercised within constitutional limits. The indicated comprehensive scope of this continuing power manifests the difficulties of the subject matter whose development under new conditions has increased the problems involved in fixing its boundaries and prescribing the limits of its exercise. Comm. v. Alger, 7 Cush.

(Mass.) 53, 85; Noble State Bank v. Haskell, 219 U. S. 104, 111 , 31 S. Ct. 186 , ³³⁰ 55 L. Ed. 112 ; Deems v. Baltimore, 80 Md. 164 , 30 A. 648 ; Welch v. Colgan, 126 Md. 1 , 94 A. 384 ; State v. Hyman, 98 Md. 596 , 57 A. 6 ; Ford v. State, 85 Md. 465 , 37 A. 172 ; Schultz v. State, 112 Md. 211 , 76 A. 592 ; Ches. & Pot. Tel. Co. v. Baltimore, etc. Co., 66 Md. 399 , 7 A. 809 ; State v. Gurry, 121 Md. 534 , 88 A. 546 ; 11 Am. Juris., sec. 249, p. 975, 976.

Generally speaking, it is within the scope and exercise of the police power to enact, within reasonable limits, statutes and ordinances for the protection of persons and property on the public highways. These are commonly regulations for the building, use, care, maintenance and condition of the public thoroughfares. Thus, it is a reasonable exercise of the police power to require a lessened speed in vehicular traffic within a specified section, of a highway in a vicinity of a school; and to station traffic officers to regulate and safeguard children at street and highway crossings near schools. The extension of the application of this principle to the transportation of school children, because of the dangers of pedestrian travel by children upon the public highway, is of doubtful legality, even if it be an effort of the State to protect, without discrimination, all school children.

Should the statute have this purpose in providing for free transportation of all school children, without discrimination in this exercise of the police power,- there is great weight to the argument that the children are the real beneficiaries of the statute, and any advantage derived by the schools attended would be incidental and immaterial. 51 Harvard Law Review, 935. Compare Cochran v. Louisiana State Board of Education, 168 La. 1030 , 123 So. 664 ; Id., 281 U. S. 370 , 50 S. Ct. 335 , 74 L. Ed. 913 ; Meyer v. Nebraska (1923) 262 U. S. 390 , 43 S. Ct. 625 , 67 L. Ed. 1042 ; Pierce v. Society of the Sisters, (1925) 268 U. S. 510 , 45 S. Ct. 571 , 69 L. Ed. 1070 . In the appeal at bar this argument cannot prevail. The State builds, maintains and safeguards the highways, and regulates 'their use in travel and transportation for the convenience, welfare, and safety of the public.

In ³³¹ thus providing, keeping and policing these public thoroughfares, and prescribing and enforcing rules for the control and safety of all kinds of travel, traffic and use, the State has not been held to be under any obligation to supply free vehicular transportation. Furnishing a safe way and regulating its use have been commonly regarded as the limits of public duty; and paternalistic care has not advanced so far as to furnish free carriage for the general public in order to free them of the hazards of being pedestrians on a highway. With respect to children the school age is from seven to sixteen in normal children. In this period of their lives their normal care and custody is in their parents and guardians.

In the exercise of its superior power as parens patriae, the State compels the children of school age and the requisite mental and physical capacity to attend either a public or an accredited private school. The compulsion is directed against the person having the child under his control. It is he whom the statute commands to see that the child goes to such a school, and it is he against whom the law denounces the prescribed penalty of a misdemeanor if he fail. If the child is a truant from school, the law affords a method to assure his attendance through the agency of an attendance officer.

Code, art. 77, secs. 220-225. Thus it is the primary duty of the parent or person in control to see that the child gets to school and back in safety, and it is not to be assumed that those so entrusted with ‘the safety of the child will suffer him to be exposed to the perils peculiar to his years or beyond his capacity to avoid. If this care is not exercised the default is not of the State. Moreover, the onerous burden that would be cast upon the State by the relief proposed is wholly and unreasonably disproportionate to the nature and extent of the hazards of the highway to the school child.

In fact, there does not seem to exist the requisite connection between the assumed welfare purpose of the Act and its provisions. The true basis to support the free transportation of school children to consolidated schools is in the fact that ³³² the policy of closing district schools by the merger of their combined pupils with those in attendance at a remote consolidated school, made the consolidated school inaccessible to the pupils of the former district schools. It was not to assure safety of travel, but to enable the distant pupils to ,get a public school education, that free transportation became a necessity. In so doing the General Assembly acted in compliance with the command of the Constitution to establish “a thorough and efficient system of free Public Schools.” Art. 8 of Maryland Constitution, sec. 1.

If, however, it be assumed that it is a reasonable exercise of the police power to protect children of school age on their way to and from school by furnishing free transportation, even then chapter 185 is not a valid exercise of that power. See Pollitt v. Lewis, 269 Ky. 680 , 108 S. W. (2nd) 671 , reported and