The opinion
The opinion of the court was delivered by
Parker, J.
The question raised by this writ, and submitted 'on briefs without oral argument, is as to the legal validity of a resolution adopted by the Board of Education of- the Township of Ewing, adjoining the City of Trenton, relating to the transportation to Trenton and return, of school children. It appears that the public school facilities in the township do not extend beyond the eighth grade, and that pupils past that grade have customarily attended public schools in Trenton or Pennington, the township paying for the tuition, and also the cost of transportation advanced by parents or other relatives. Previous to July 1st, 1941, all children so transported attended public high schools, and the township board contracted for their transportation pursuant to
B. S.
18:14-8, the first paragraph of which provided that “whenever in an3r district there are children living remote from the schoolhouse, the board of education of the district may make rules and contracts for the transportation of such children to and
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from school.” The original act seems to date from 1903 (acts of second special session, page 45). But in 1941
(Pamph. L., p.
581) the paragraph above quoted was amended and another paragraph added. In the first paragraph the words “the schoolhouse” are changed to read “any schoolhouse” and after the words “to and from school” the paragraph continues “including the transportation of school children to and from school other than a public school, except such school as is operated for profit in whole or in part.” The additional paragraph reads: “When any school district provides any transportation for public school children to and from school, transportation from any point in such established school route to any other point in such established school route shall be supplied to school children residing in such school district in going to and from school other than a public school, except such school as is operated for profit in whole or in part.”
The result, of course, is to provide for free transportation of children at the expense qf the home municipality and of the state school fund to and from any school, other than a public school, which is not operated for profit; and accordingly, the resolution brought up by this writ provides for the transportation of school children of Ewing Township, not only to the Trenton and Pennington high schools, but to certain other designated schools in Trenton not operated for profit, but not connected with the public school system, “by way of public carriers as in recent years.” It is stipulated that the township authorities pursuant to the resolution agreed to pay for the then current school year the cost of transportation to such non-public schools approximately $859.80 and actually did pay part thereof.
We conclude that the resolution under review must be set aside, on the fundamental ground that the amendment of 1941 is in violation of paragraph 6 of section 7 of article IV of the constitution, which reads: “The fund for the support of free schools, and all money, stock and other property, which may hereafter be appropriated for that purpose, or received into the treasury under the provision of any law heretofore passed to augment the said fund, shall be securely invested, and remain a perpetual fund; and the income
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thereof, except so much as it may be judged expedient to apply to an increase of the capital, shall be annually appropriated to the support of public free schools, for the equal benefit of all the people of the state; and it shall not be competent for the legislature to borrow, appropriate or use the said fund, or any part thereof, for any other purpose, under any pretense whatever. * *
The facts are not in dispute. We are called upon to decide the purely legal question whether or not the township board of education in appropriating money for transportation of pupils to and from parochial schools in a neighboring city,
i. e.,
other than public schools, contravened paragraph 6 quoted above.
There are two theories. A majority of the state courts have held such transportation unconstitutional. The leading case,, supporting that theory, is the New York case of
Judd
v.
Board of
Education, 278
N. 7.
200; 15
N. E. Rep. (2d)
576; 118
A. L. R.
789. Typically illustrative of this theory are the following cases:
State, ex rel. Traub
v.
Brown (Del.),
36
Del.
181 ; 172
Atl. Rep.
835 ;
Sherrard
v.
Jefferson County Board of Education (Ky.),
294
Ky.
469 ; 171
S. W. Rep. (2d)
968;
Gurney
v.
Ferguson (Okla.),
190
Okla.
254 ; 122
Pac. Rep. (2d)
1002;
Mitchell
v.
Consolidated School District No. 301 (Wash.),
135
Pac. Rep. (2d)
79, and
State, ex rel. Van Straten
v.
Milquet
(Wis.), 180 Wis. 109 ; 192
N. W. Rep.
392 .
The óther theory (Child Benefit Theory) that such transportation is not unconstitutional was adopted by the court of Maryland
(Board of Education of Baltimore County
v.
Wheat,
174
Md.
314 ; 199
Atl. Rep.
628 ); by Louisiana
(Borden
v.
Louisiana State Board of Education,
168
La.
1005 ; 123
So. Rep.
665 ; 67
A. L. R.
1183, and
Cochran
v.
Louisiana State Board of Education,
168
La.
1030 ; 123
So. Rep.
664 ); and by Mississippi
(Chance
v.
Mississippi,
206
So. Rep.
706 ).
We are not required to make a choice between these two theories, as the matter is not one of first impression in this state. In the case of
Rutgers College
v.
Morgan,
70
N. J. L.
460 (at
pp.
474-475), it was held by this court, in an opinion
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by Mr. Justice Van Syckel, that the constitutional provision (paragraph 20 of article I) and the provision relating to special laws “does not bar instrumentalities for public education provided by the state and under its control by general laws where the appropriation is made for such schools. They were designed as an insurmountable barrier to giving free state aid, and to donations to private or
sedarían
schools, and should be rigidly enforced; but they were not intended to narrow or circumscribe the legislative power to furnish facilities by general laws for public education under its own supervision.” The decision was affirmed by tlxe Court of Errors and Appeals iix all essential features in 71
Id.
663. The same principle was applied by Vice-Chancellor Buchanan in
In re Voorhees,
123
N. J. Eq.
142; 196
Ail. Rep.
365; affirmed by this court, 121
N. J. L.
594; 3
Atl. Rep. (2d)
891, and by the Court of Errors and Appeals, 124
N. J. L.
35; 10
Atl. Rep. (2d)
650.
The resolution under review will be set aside, with costs.