Petition for Writ of Certiorari — Board of Public Works of Maryland v. HORACE MANN LEAGUE OF THE UNITED STATES OF AMERICA, INC.

Supreme Court brief1966

Ask Donna

What actually matters in this document.

Text

: Bape * MA ¥f

ME COURT. u, cy

ee <a ee

_ Supreme Court of the Unit stat

m9 - DAVIS, CLERK ”

Ofie: Supreme oar us. |

Aus 24 1966

~ OCTOBER TERM, 1966

- No. AT 3. #

BOARD OF PUBLIC WORKS OF MARYLAND,

a ET AL., |

y: Petitioners,

THE HORACE MANN LEAGUE OF THE

UNITED STATES,OF AMERICA, INC.,

BT AL,

i Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

THOMas B. FINAN,

Attorney General.

‘1200 One Charles Center

Baltimore, Md. 21201

For Petitioner,

_ Board -of- Public Works-————

of -Maryland.

‘WILLIAM ‘LL. MARBURY,

900 First Nationa] Bank Bldg.

# Baltimore, Md.. 21202

hee For Petitioners,

Of Counsef: are The Saint Joseph College

Epwarp L. BLANTON, -.of the Daughters of ©

GrEorGE W. CoNSTABLE, | Charity of Saint Vincent -

Francis X.GALLAGHER, de Paul, Inc.;

ROBERT pga 2 — of nf in Dame of

a poh Ls line aryland, Inc.; and ;

J. NICHOLAS SHRIVER, JR., Western Maryland ( : llege. ©

ARTHUR E. SUTHERLAND, ; é ‘

Grorce T. ‘Tria.

?

© if

f

inpes. CC

_» TABLE OF CONTENTS —

oe eee PAGE

PRAYER FOR WR? Nast se saplscinnyngrsnnmeannanenvonses 1

CITATIONS TO OPINIONS BELOW................ el aaka ae

jUETON .cus....>.... TAIRA nce A 2

THE QUESTION PRESENTED... weer cic ieLacipaaglanticncis 3

braruree Denia a.

STATEMENT OF THE ae os

- REASONS FOR GRANTING THE WRIT:

I. The Case Presents an Issue of Great Public:

RINNE reccsecicecsercntintocesssenae Laccigntvontonns 7

II. The Matter is Ripe. For Review.......... ee 10

II. The Maryland Court Has Misinterpreted

‘the Decisions of This COUT Enns beaeias Il

CoNcLUSION anes iia eanaalliia tei arta Ti hae itn 13.

APPENDIX A: ms!

_ Chapter 546, Laws of Maryland, 1963................ ae

Chapter 545,. Laws of Maryland, 1963... 6a

Chapter 66, Laws of Maryland, ee ie

APPENDIX B: |

Opinion of the Court of Appeals of org oe 17a

Opinion of the Circuit Court for Aane Arundel

. _ County ipesh asain Necaitiastsaastindadeidiiaiaddipcccanaiias siisinnote 7la

APPENDIX C: Federal Programs in which De-

: -. nominational Schools and Colleges

bar may Participate |................. gecetentny. F2a

APPENDIX D: Selected’ Bibliography Sah ceceelicentede . 108a

>

a

.

f

ap

Y

£

r-

ki

j

iz

4

&

&

f

*

=

“*

il

TABLE OF CITATIONS |

Cases a

PAGE

Abingian School District v.. Schempp, 374 U.S. 203-11

Bradfield vy. Roberts, 175 U.S. 291...:.......- ene Ek

_ Horace Mann League v. Board of Public Works,

Se I iat ichenencisbie etectiiid pinnintetanisninshacinenanianininy a 6.

Truitt--v, ‘Board’ of Public Works -of Mary

4 ee | Senne ee 6

} | Oise ‘Statutes é i

Laws of Maryland : | |

Chapter 546, Laws of RR tact aneniinienetiiaisenioieneens 3

Chapter. 545, Laws of 1963...... 5 IRCT AEA OR ae

Chapter 66, Laws of 1962... BR! OT leads

Laws of the United States: }

Elementary and Secondary Education. Act of

Ps Oe MR ie: PN isi iecerenacccciinesBicresscnannene 10

Higher Education Act of 1965, 79 Stat. 1220, |

.. Be UB Be 1005, 1965 Sapp...:...:.:................... 10.

. Higher Education Facilities Act of 1963, 77 |

Stat. 363, 20 U.S-C.A. 701, 1965 Supp...........8, 9, 10

Morrill Land Grant Acts of 1862 and 1890,° 12

sig Reties , ta, tects Reh 7

28 U.S.C. Section PERE aera eres ale

| | Miscellaneous

Editorial, School Policy Void, the New York

UN, FA FF, TI inns viiecncscisiescvesncscetvenionsneis 10 |

Education Directory 1962-63, Part 3, Higher

Education, U.S. Dept. of, Health, Education and

I i ncconitns snesilntnnanesisiteenesnaneonineenennpioes ue

i

"Hearings on H.R. 967, 2218, 4267, 4415, 5467,

10942, 11250 before Subcommittee ‘of ‘House

Committee on Education and Labor.........--., ince

Hearings on H.R. 5266 before Subcommittee of

’ House Committee on Education: and Labor........

Hearings on °S, 2097 before Subcommittee of

Senate Committee on the Judiciary...7.................

Kurland, Religion.and the Law..............:....-.-.---- So

Opinion, Department of Justice, State of Oregon

, ER I Ta acon cs cachnsiianisccoiaticl taonabbiniba

- Orlans, The Effects’ of Federal Programs ‘on

Higher Rai csisnnisinniessaritiniclamsesiaiiiatinlhidaanies

Projections of Educational Statistics’ to 1974- 1

U.S. Dept. of Health, Education and Welfare

Rafalko, Federal Aid to Private School @ontro-

versy: A Look, 3 Duquesne & Law Rev. 211....

Rivlin, [The Role of the Federal Government in: —

Financing Higher Education

- Second Annual Report of the State of Maryland ”

Advisory Council for Higher Education

. Senate Document No. 29, Constitutionality of Fed-

eral Aid to’ Education in its Various Aspects,

_87th Cong. USt Se88.......n..-.eensseseeneesenngeneesenesenenesnness

“US. Code Congressional and Administrative

Phew, BEG CMe, TOE annus scsisscsncsesncansqssqsssees

7 Harvard Law Review 1353..o0...........ccsscseseseeceees

~ 109 Cong. Rec. Senate (daily edition 1963) 18256-

ce 18508, Ts: ROR er JERR

PAGE

®

~ an oe &

?

tN THE ,

= Seem Court of a the Ute hon?

® OCTOBER TERM, 1966

BOARD OF PUBLIC WORKS OF MARYLAND,

ET AL.,

Petiiioners,

v.

THE HORACE MANN LEAGUE OF THE.

UNITED STATES OF AMERICA, INC.,

; . ae

F | scan Soe Sein:

PETITION FOR A WRIT OF CERTIORARI TO THE °

_ COURT OF rte. 0 MARYLAND

\

PRAYER FOR WRIT

The Board of Public Works of Mirylend, The Saint °

Joseph College of the Daughters of Charity of Saint

Vincent de Paul, Inc. (Saint Joseph College), The Col-

lege of Notre Dame of Maryland, Inc. (the College of

Notre Dame), and Western Maryland College pray that

‘a writ of certiorari be issued to review the judgment of

the Court of Appeals of Maryland, entered in thé above-

entitled case on June 2, 1966. That judgment, entered. in

y

ip pa os is

as

2

|

a 1 suit brought by complaining taxpayers* and the Horace

Mann League, enjoined the payment by officials of the

State of Maryland of matching funds appropriated” by

‘the state legislature to three private liberal arts-colleges

for the construction of science buildings and a dining hall.

The court held that each of the colleges concerned was

$$ closely affiliated’ with a religious denomination as to

be a “sectdrian’” institution and that the appropriation of

state funds to. such ah instifution for the purposes indi-

cated amounted to the establishment of a religion in viola-

tion of the first and fourteenth amiendments of the federal

constitution.

‘CITATIONS TO OPINIONS BELOW

The opinion of the Circuit Coyrt for Anne Arundel

County is ‘unreported. It. is printed at pp. 58-79 of Volume

-I of the joint record extract filed in the court below

and with this petition. It is also printed in appendix B .

p. 71a) to this petition. The opinion of the Court of

ppeals of Maryland is reported in 242,Md. 645 and

is printed in appendix B (p. 17a).

Qa

JURISDICTION

The. judgment of the Court of Appeals sought to be

“reviewed was entered on Jime 2, 1966. A petition for

rehearing filed by woth poate of Public Works and a peti-

byes ct held ‘that the Horace Mann a standing to

; itis th® suit but that the individual plaintiffs, r here,

had shown a sufficient interest as taxpayers to do —s respondent

taxpayers are: Robert E. Allen, Jr., John D. Elder, Fred M. Felmet,

By and Adelaide C. Felmet, William L. ~~ Doris’ E. Hadary,

ildred Harkness and Elmer C. Harkness, , James ‘L. Liewell

and Gertrude C. Llewellyn, Dr. Albert R. Wi ‘ll ane Raymond Keith

Winters and Carey Jennings Winters. ©

, et ‘ 3 |

tion for ames filed by Saint Joseph College and Col-

lege of Notre Dame were.denied June 28, 1966. A peti-.

tion for rehearing filed by Western Maryland - ‘College

was denied July 25, 1966. The jurisdiction of this gourt

is invoked unde U.S.C., Section 1257(3), since three

Maryland statutes printed in appendix A to this petition

(beginning at p. la) have been, held invalid by the

highest court of the state on the ground that they are

repugnant to the first'and fourteenth amendments to the

constitution of the United States. The court found that the

statutes did not conflict with any Pfovision of the Mary-

land constitution and expressly based its holding of

‘invalidity solely on its interpretation of the federal

constitution. :

‘THE QUESTION PRESENTED ‘

Do the first and fourtéenth amendments to the consti-

tution of the United’ States prohibit as an establishment

-ef.religion the appropriation of state funds to construct

science buildings and a dining hall at private liberal arts

colleges, regardless of any secular public purposes served

thereby, merely because the institutions\are considered .

‘to be “sectarian” ?.

STATUTES INV OLVED ®

The statutory provisions involved are: Chapter-546 of

the 1963 Acts of the General Assembly of Maryland,

found at p. 973 of the Laws of Maryland, 1963; Chapter

545 of the 1963 Acts of the General Assembly Of-Mary-

land, found at p. 970 of the Laws of Maryland, 1963; and

Chapter 66 of thie.1962 Acts of the General. Assembly of

eee, found at p. 219 of the Laws of f Maryland,

-

4

1962: * They are printed in appendix A to this petition,

beginning 3 at p. la.

’ STATEMENT OF THE CASE

In 1962 and 1963 the General Assembly of Maryland, |

in pursuance of a state policy. of aiding private colleges

(including those with sectarian affiliations ) whieh dates

back to-1784, enacted four bills, each of which provided

for the sale of certificates of indebtedness of the State of

Maryland dnd forthe payment of the net proceeds of the

sale to a church-related college for use ona, ‘matching-

fund basis for the constysction of one or more buildings

to be used for educational purposes. In the cases of Saint

Joseph College and the Collegeof Notre Dame, the funds

were to be used for the erection of science buildings; in. ©

the case of Western Maryland College for a dining hall

and a science wing; in the case of Hood College of Fred-

erick, Maryland, for the construction of a dormitory and

classroom building.

These bills were aie by the Savini of Mary- :

land, but before any certificates of indebtedness had been”

issued, the. respondents filed a bill of complaint in the

Circuit Court for Anne Arundel County, Maryland,

challenging the validity of all four statutes. The bill of

complaint charges that.the proposed expenditures of state

funds “violate the First Amendment.to the Constitution

of the United States of America, as made applicable to

the State of Maryland by the Fourteenth Amendment to

.said Constitution, in that they constitute in each case a

* Since the Court of Appeals upheld the validity of the statute relat-.

ing to Hood College, it is not included among the statutes involved

in this petition. .

ad

ee Soe

me

law respecting an establishment of religion . . . by the °

State of Maryland.” (E. 12-13)* The bill prays a decla- .

ration of the invalidity of each statute and an injunction

prohibiting.the payment of the funds.

After a trial of almost three weeks,® the trial court

found that while each of: the colleges is affiliated with a

particular religious denomination, each of them is pri-

marily a liberal arts college affording its students educa-

tional opportunities which are the equivalent of those

offered at‘a secular college. (E. 60-62,-77) The trial

court also found that the “grants .. . are for the construc-

~e tion of gecular college buildings i in no way connected with

" religion.” (E.74) The court explicitly found on the basis

of uncontradicted testimony that the scientific instruction

at each of the four colleges did not differ materially from

that afforded by a secular institution. (E. 77) The trial

court then held that no provision of either state or federal

constitutitions prohibits the questioned grants (E. 69-79)

and dismissed the bill.

The original plaintiffs appealed to the ae of he

peals of Maryland. (E. 6) “As the first question they

wished that court to consider, they asked: “Did the trial

court err in holding that the grants in this case were not.

an establishment of religion: and a deprivation of the

liberty and ‘property of plaintiffs and others similarly

situated, without due process of law in violation of: the

First and Fourteenth Amendments to the Federal Con-

stitution?” (Respondents’ Brief in the Court of Appeals:

of Maryland, p. 3) This issue was’fully briefed and

argued by the respondents and the petitioners. The Court

* Reference are to the joint record extract filed in the court below _

and filed in this court with this petition.

6

of Appeals of Maryland, in a 4-3 decision,* held that

Western Maryland “is sectarian in a legal sense under

the First Amendment, and may not constitutionally re-

ceive the grant named in the Bill.” (242 Md. at 678) The

court went on to make a similar holding as to the College

of Notre.Dame and Saint Joseph’ College. (242 Md. at

684) The statutes authorizing the grants to these three

colleges were accordingly held to be invalid and unconsti-

tutional as in conflict with the “Establishment Clause”

of the federal constitution: (242 Md.-at pp. 679, 684)

--On the other hand, the Court of Appeals unanimously

agreed with the trial court that none of the four statutes

violated any provisions of the Maryland constitution (in-

cluding the express provision of Article 36 of the Mary-

land bill of rights that no person “ought * * * to be com- .

- pelled to frequent, or maintain, or contribute, unless on

contract, to maintain any place of worship, or any minis-

try”). In that connection the court said: “The. grants

here under consideration (if effectuated ) are clearly ones.

to be-expended for public uses: to assist in educating our

’ citizen” (242 Md. at 685) The court further held unani,

mously that the legislature might validly appropriate

funds for the construction of educational facilities: at

Hood College, since that institution, while affiliated with

a particular religious denomination, was not “sectarian”.

¢

: x

_* Of the 7 judges of the court, 2 disqualified themselves. One of

these has since’ expressed grave doubts as to the correctness of the

decision of the —s in this case. (See concurring opinion of

- Barnes, J. in Truitt v. Board of Public Works of Maryland, ._.” Md.

“filed July 22, 1966.) Thus, the decision of the majority below

represents the views of only two of the regularly assigned judges of

the highest court of the State of Maryland. Their votes, together with

the votes of two trial judges specially assigned to sit in this case, have

prevailed over the views of a majority of their colleagues.

MM

. i I. :

The Case Presents an Issue of Great Public Importance

It is common owledge that in recent years our insti-

tutions of higher education have been flooded with appli-

cants.. Moreover, during the next decade this trend is

expected to Continue.. The latest official predictions in-

dicate that during that period the enrollment of students

in the nation’s colleges and. universities will increase by

more than 50% and that the total cost of educating the

‘students in these institutions will approxynately double.*

In an increasingly complex society, the facilities and staff

of every existing institution of higher education in this

country must ‘be utilized to the fullest extent possible if

these young men and women are to'receive the best educa- |

tiolpof which they are capable. Moreover, if the political,

economic and social problems generated by a population |

which is rapidly approaching the 200 million mark are

fo be met, the nation simply cannot afford not to give this

opportunity to its youth.

Recégnizing these facts, the federal government, since

the end of World War'II, has enormously increased ‘ts

support of institutions of higher education, including

private colleges, regardless of their religious affiliation.***

*See “Projections of Educational Statistics to 1974-75, U.S.

Department of Health, Education and Welfare (Superintendent of

Documents Catalog No. FS 5.210:10030-65). o2

** Federal support for denominational institutions of higher educa-

tion dates back to the late 18th century in the Ohio Company Land

Sale Ordinance of July 23, 1787. Other notable instances‘ of such

support are the Morrill Land-Grant Acts of 1862 and 1890 (12 Stat.

503 and 26 Stat. 417). See Rivlin, “The Role of the Federal Govern-

ment in Financing Higher Education”, pp. 9-20, Brookings Institu-

tion, Washington, D.C. (1961). Maryland has consistently aided such’

waa 1784. See opinion-of dissenting judges below, 242

d. at 691-2. - , ,

>

ed

8

bitany of the principal programs are described in a ‘pam: -

_ phlet entitled ““Constitutionality of Federal Aid to Educa-

tion in its Various Aspects,” printed as Senate Document

No. 29, 87th Congress, First Session, pursuant to Senate.

Resolution 126, adopted May 1, 1961. The programs

listed there, together with certaiigones omitted and others

added by subsequent legislation, -are briefly described. in

appendix € to this petition (beginning at p. 92a). See

also’ Rafalko, “Federal Aid to Private School Contro-

versy: A Look,” 3 Duquésne ciation * Law Review 211

(1965). < . eae

In he prtainite to The Higher Education Facilities

Act of 1963, exptess reeognition is given: by Congress to

the facts:stated above.. (See 77 Stat. 363, 20 U.S.C.A. 701,

.1965 Supp.) The legislative findings embodied in that

preamble were based on testimony given before Congres- |

sional committees by representatives of the American.

Council on, Education and other organizations which :

strongly urged Congress not to withhold its aid from any

accredited institution of higher education. See'U.S. Code

Congressional and Administrative News, 88th Cong., Ist .

Sess., pp. 1174-1177 (1963). Sée also Hearings on H.R.

967, HR. 2218, H.R. 4267, H.R. 4415, H.R. 5467, H.R.

_ 10942, H.R. 11250 (college Classroom construction), be-

fore a subcommittee of the House Committee on Educa-

tion and Labor (Statement of Hon. Arthur S. Fleming) .

_. 86th ‘Cong. ., 2nd Sess., pp. 24-28 (1960) ; and Hearings on

H:R. 5266 (college academic facilities construction), be- —

fore a-subcommittee of the House Committee on Educa-

tion and Labor (Statement. of Hon. Arthur S. Fleming) —

87th Cong., Ist Sess., pp. 130- 133 (1961). Thus, Con-

_ gress has explicitly recognized that if the present crisis

in higher education is to be met, the nation mbst utilize.

the services of so- -called denominational colleges, of which,

-

ate Sve BYE

\

aie *

aon. \shanainne ere ancsenimnnaary meaty Aas Thee 14

nee ae Sent s

ene Sete Me nai oe Ne

Dattiw ale tech aditablicdiiad

ee ie 9

according to the official tabulation of the Department of

Health, Education and Welfare, there are now 842.*.

The programs undertaken pursuant to the legislation in

aid of higher education haye resulted in the expenditure

of more than two billion dollars annually (E. 728-29) and

have transformed the entire financial structure of. higher

education in this country. See Orlans, “The Effects of

Federal Programs on Higher Education,” The Brookings

Institution, Washington, D.C. (1962). It is no exaggera-

tion to say.that any college or university which is denied

the right to participate in these progtams is condemned

to hopeless inferiority and in all probability, to ulzimate

extinction. See Hearings on S. 209Pbefore a subcom-

mittee of the Senate Committee on the Judiciary (State-

ment of John T. Fey representing the American Council

on Education and the Association of American Colleges)

89th Cong., 2nd Sess. Part1, pp. 183, 186 (1966).

The. present’ suit draws in question the right of any

college or university with substantial affiliations with a

particular religious denomination to participate in any

of these programs.** The decision of the Maryland court

will, of course, bring to an abrupt halt the long standing

policy of the State of Maryland to aid private colleges, ©

* Education Directory 1962-63, Part 3, Higher Education, U.S.

‘Department of Health, Edu@ation and Welfare, Office of Education,

. Superintendent.of Documents No. FS 5.25 :962-63/Part III, p. 14.

** While the Senate was debating the necessity for gdding to The

Higher Education Facilities.Act of 1863 a provisién for judicial review

of the constitutional validity of grants made thereunder, Senator

Morse, who managed the bill on the floor, contended that such:a pro-

vision -was unnecessary and cited the present litigation as one Which’

p ga

would afford an appropriate means of deciding the issue. which was

being. raised by Senators who were questioning the validi r of pro-

viding facilities to colleges,with substantial religious affiliations. 109

Cong. Rec. Senate (daily edition 1963) 18256-7, 18508, 18525, 22895.

See also 77 Harvard Law Review 1353 (1963-64).

“-

. a «- “

.

af . ¢ ill al ee ol tn

ry

eh BF Ame

ee oe

eR we Ones

10

including those with substantial religious affiliations,

through grants of funds to be used for facilities and

scholarships — a policy on which the state has been

counting as a means of meeting its share of the rapidly

growing burden of educating the youth. of the nation.

(Second .Annual Report of the State of Maryland Ad: |

' visory Council for Higher Education, January, 1966, p.

4.5, and p. 4-13). But it.is-bound to have ‘an impact

far beyond the borders of the state and to create confusion

in the adnfinistration of federal programs which would be

inoperable without the action of state officials, paid. from.

‘state’ revenues. See, for example, Section 105 of The-

Higher Education Facilities Act of 1963 (77 Stat. 367: -

as amended by 79 Stat. 1267, 20 U.S.C.A. 715, 1965

“Supp.), and Section.105 of The Higher Rducation Act

of 1965 (79 Stat. 1220, 20 U-S.C.A. 1005, 1965 Supp.).

See also Section 203 of Title II of the Elementary and

- Secondary; Education Act of 1965 (20 U.S.C. 24le)

which - has produced conflicting opinions from various ,

state law departments. See opinion of Department of

' Justice, State of Oregon, dated July 29, 1966. See also

editorial, “School Policy Void”, The.New York Times,

August 17, 1966. 7

Thus, the judgment which this court is now being asked

to review involves a matter of the greatest public import-

ance. Indeed, it presents what may fairly. be character-

ized as the single most important | issue in the field of

church-state relationships which remains eaderiaes by

this court. ; |

II. .

The Matter is Ripe for Review

As has been indicated, the federal government has

already entered upon an extensive program of aid to

arte RR vine A bm Deane SOs See Pas oecioen pd ort.

4

we 6 res SF BROS Atos 2 hl

t

Seta

.

. &

1]

private liberal arts colleges and universities without re-

gard to their sectarian affiliation. The validity of this —

program has been cast in doubt by the decision below,

_ and a definitive ruling by this court is urgently required.

The issues involvea have been canvassed i in innumerable

publications, end the.court will find no lack: of discussion

of almost every facet of the question. Attached, as appen-

dix D (beginning at p. 108a), is a partial bibliography

which will give some indication of ‘the extent and. char-

acter of these publications. .

Accordingly, thé question | is ripe for decision, and it

is submitted that no useful purpose can be served le post-

poning its consideration. Indeed, the only effect of such

_. postponement would be to involve a large number of im-

portant institutions of higher education i in an ever deeper

quagmire of doubt and confusion on a matter vital to =.

“ welfare.

| ae III.

‘The Maryland Court has Misinterpreted ’

’ the Decisions of this Court

| ‘The previous decisions of this court offer no clear guide

*

to the resolution of the problem. presented in-the present

case.’ As Professor Kurland aptly put it, “Anyone sug-

gesting that the answer [to this question] is clear one.

way or the other is either deluding or deluded.” Kur-

land, “Religion and the Law”, p. 111, Aldine Pub. Co.

(1962). From Bradfield v. Roberts, 175 -U.S. 291, to

» Abington School District v. Schempp, 374 US. 203,

many utterances may be found which seem to point to

different answers to. the question which the, Maryland

court has decided. °

ad

ra)

to the secular end.

12°

The majority of the court below, although expressly

finding that the statutes in question were on their face’

not intended to aid religion and that they achieved an

important secular purpose, namely, the providing of col- .

lege students with adequate facilities Por scientific instruc-

tion and dining, nevertheless concluded that since the-in-

stitutions involved were substantially affiliated with par-

ticular religious denominations, no -state aid could be

given to them even to achieve a secular public purpose.

Your petitioners submit that in so Holding, the majority

of the court has misinterpreted and misapplied the de-

cisions of’ this, court. While for the reasons stated above,

it is impossible to speak with certainty on this subject; we

believe that fairly interpreted, the decisions of this court

_ establish the following propositions:

1.. The authority of the state may not be placed behind

regulations which require religious exercises or religious

snstruction, — : om

2.: The state may not give direct financial support to-

religious institutions such as,churches, seminaries, con-

vents, and the like, since any Sibaler benefits flowing from:

such support are by-products of religious ‘activities,

3. The appropriation: of funds | for purposes which

benefit private educational institutions operated under re-

_ ligious auspjces is permissible where the primary object

of the appropriation is to achieve a secular purpose and~

where that purpose is achieved not as a by-product of

religion but by non-religious means specifically directed

> ¢

Measured by ihe principles, we submit that the stat-

utes here involved are plainly valid.

™= . ae

—"

- GEORGE T. ‘TYLER.

CONCLUSION :

It is for these reagpns that we urge that this petition ® —

should be granted. ee

‘Respectfully submitted, ¢ . ey

aie ee

. THoMas B. FINAN,

2 ai Attorney eral

ee For Petitipner,, -

arene tee or Board of \ Public: Works :

_ . of Maryland.

WILLIAM L. ‘MARBURY, | 4 xa

we For Petitioners,“ 4

oo : The Saint Joseph Edge

. a Site of the Daughters of

© * =. Charity of Saint Vincent |

i on ’ « de Paul, Inc.;— |

College of Notre Dame of ~

Maryland, Inc,; and y »

_ Western Maryland College.

any ier,

a

Of Counsel: 6.

Epwarp L. BLANTON, —

GEORGE W. CONSTABLE, , . \

FRANCIS: X. GALLAGHER, ‘ness

ROBERT C.. MURPHY, “7 | ie ".

Lewis A. NOONBERG, hake :

_ ALFRED L. SCANLAN, © al : : a

J. NICHOLAS SHRIVER, JR. _

ARTHUR E. SUTHERLAND,

ee eg AE

tilted

SS gy “4

ee nes

ad

\

P

0 SRS LBL ERE SO:

|

‘

i

|

es

la

APPENDIX A ®

i CHAPTER 546

(Senate Bill 642)

AN ACT to authorize the creation of a State debt in the

($500,000.00) -for the purpose of aiding in the construc-

' tion of a new science wing to Lewis Hall and ‘a new din-

ing hall on the campus of Western Maryland College, in

Westminster, subject to the requirements that the said

College, on or before January 1, 1965, shall have obtained

elsewhere at least an equal and matching sum for the

same purposes; and proyiding generally for the issue

and sale > pt a of indebtedness evidencing this

loan. i

Section 1. Be it enacted by the General Assembly of

Maryland, That the Board of Public Works is hereby au-’

thorized and directed to issue a State loan to be known

as the “Western Maryland College Loan of 1963”, in the

‘ aggregate sum of Five Hundred Thousand Dollars

($500,000.00) .

the certificates evidéncing said loan may be issued all

y atone > time or, in groups, from time to time, as hereinafter

“ provided. ‘All of said certificates. evidencing said loan, or

any group thereof, shall be issued according to what is

known as the serial annuity plan so worked out as to dis-

charge the principal represented by said certificates within

fifteen (15) years from the time of its issue; provided,

however, that it shall not be necessary to provide for the

redemption of any part of the principal represented by any

certificate for the two (2) years from the time of the

‘issuance of said ificates.

The Board of Public Works shall, and is hereby author-

ized and “empowered to, pass a resolution or resolutions

from time to time, determining and setting forth:

(a) The proportion of ‘the total loan authorized by this

Act which shall be issued at any particular time;

on,

aggregate amount of Five Hundred Thousand Dollars .

annum, payable semi-annually.

2a

(kb), The form of the certificate representing the loan or

any part thereof so authorized to be issued at any particu-

lar time, including any interest coupons to be attached

‘thereto, and provisions for the issuance of certificates in

registered form, provisions for the registration of any

coupon certificates as to principal of loan and for the reeon-

version into coupon certificates of any certificates regis-

tered as to principal.

_ (ce) The denomination or denominations of the certifi-

cates to be issued at any particular time, which may be not —

less than One Hundred Dollars ($100) but may be in sums

- of One Hundred Dollars ($100) or any suitable multiple

thereof, and the place or places of payment of principal -

and interest thereof.

_ (a) The rate of interest of the certificates to be issued

at any particular time not exceeding in any case 4% per

(e) The date of the certificates issued at any particular

time, and within the limits prescribed by Article III, Sec-

tion 34 of the Constitution of Maryland the redemption

dates of said certificates.

The resolution authorizing the issuance of said loan or

any portion thereof shall set forth in detail the dates when

any of the certificates representing said loan or any portion

thereof are-to be redeemed and the amount to be redeemed

upon such dates respectively, according to the serial anny-

ity plan applied to said loan as a whole or to the group f

certificates evidencing a part of said loan issued at a par-

ticular time, as the case may be. Said loan and certificates

and every part thereof and the interest payable thereon

shali be and remain*exempt from State, County and munic-

ipal taxation. — ae oe :

Sec. 2. And be it further enacted, That the Board of

Public Works is hereby authorized and directed to have

prepared proper Certificates of Indebtedness of the State

in good and sufficient form to aggregate the amount of

_ Five Hundred Thousand Dollars ($500,000.00) as evidence

6

3a

of such loan; such Certificates of Indebtedness shall bear

date as of the time of their issue as provided in Section 1

of this Agf.. Each of said certificates shall be signed and

countersigned in the manner prescribed by Section 3 of

Article VI of the Maryland Constitution.

See. 3. And be it further enacted, That in order to pro-

vide for the selling of the Certificates of Indebtedness afore-

said, to be issued under the provisions of this Act, the Board

of Public Warks is hereby directed to advertise once be- .

fore the said Certificates of Indebtedness, or any part thére-

of, shall be issued, in two newspapers published in the City

of Baltimore and in such other manner as the Board of

Public Works in its discretion may determine, that the

Treasurer oMhis State will be in readiness at a time within

twenty (20) days after expiration of said notice to receive .

bids at such place or places as may be named in said respec-

tive advertisements for bonds or Certificates of. Indebted-

ness issued under the provisions of this Act, under such

regulations as may be made in the discretion of the Board

of Public Works; and the accrued interest between the date

of the bonds or Certificates of Indebtedness and the time

of sale and delivery of and payments for said bonds or

Certificates of Indebtedness shall be adjusted with the pur-

chaser thereof under such regu]ations as may be made in

_ the discretion of the Board of Public Works; and upon the

day mentioned in said advertisement as the day for opening

the bids for the proposals thereby called for, they shall re-

ceive such sealed. proposals for the purchase of as many’

of such bonds or Certificates of Indebtedness as may be

‘mentioned or designated in said advertisements: and on

. the opening of such sealed proposals, as many of said bonds”

or Certificates of Indebtedness as have been so bid for shall

be awarded by the Board of Public Works, to the highest

responsible bidder or bidders therefor for cash, if the prices

bid are adequate, in the judgment of the Board of Public

Works, and when two or more bidders have made the same

bid, and such bid is the highest and the Certificates so bid

for by the highest responsible bidder are in excess of the

whole amount of the Certificates offered for sale, such

4a

-

bonds or Certificates of Indebtedness shall be awarded to

. such responsible bidders bidding the same price in a ratable -

proportion; or if any insufficient price be bid for them, ~

they may be subsequently disposed of under the direction

of fhe Board of Public Works at a private sale upon the

best terms they can obtain for the same; provided, they -

sHall not be sold at private sale for less than par and

accrued interest.

Sec. 4. And be it further enacted, That the sum of Ten

Thousand Dollars ($10,000), or so much thereof, as may

be necessary, shall be paid by the Treasurer of the State

upon the warrant of the Comptroller out of the proceeds

of the sale of said bonds or Certificates of Indebtedness, ©

for the payment of the expense of engraving, printing and

other outlays connected with the issue of the loan hereby

authorized and for the payment of the advertising directed

by this Act, and all other incidental expenses connected —

with the execution of its provisions in connection with

said loan. :

Sec. 5. And be it suai enacted, That the actual cash

proceeds of the sale of the Certificates of Indebtedness to

be issued under this Act shall be paid to the Treasurer of

the State upon the warrant of the Comptroller and such

proceeds shall be used exclusively for the following. pur-

poses, to wit:

The Comptroller shall immediately upon the sale of and

payment for said certificates, first return to and credit the

Treasury for a sum equivalent to the amount expended as

provided for in Section 4 of this Act; the remainder of the

vrocerds of said loan shall be credited on the books of the

‘State freasury Department, to“be expended as needed by

the State, upon approval by the Board of Public Works,

for the purpose of aiding in the construction of a new

‘science wing to Lewis Hall and a new dining hall on the

campus of Westérn Maryland College in Westminster.

Sec. 6. And be it further enacted, That the payment of

any funds under the provisions of this Act, for the purpose

of aiding in the construction of a new science wing to Lewis

. .

| eee ee SG ee Te. ere Serer Se teen oan et eny od

ay .

,

: .

t

5a

land College in Westminster, shall be contingent upon the

provisions by Western Maryland College of at least an

equal and matching fund from other sources, including the

Federal government. The said College shall have until

January 1, 1965, to present evidence satisfactory to the

Board of Public Works that it has raised at least this equal

and matching fund for the purpose of aiding. in the con-

“struction of a new science wing to Lewis Hall and a new

' dining hall on the campus of Western land College in

Westminster. Upon receiving from the Board of Public

Works a certification of such suitable evidence on or before

January 1, 1965, the Treasurer of the State-is hereby au-

thorized, empowered and directed to proceed to spend the

proceeds of said loan agreeably to the other provisions of

this Act.. If such satisfactory evidence of the raising of at

least an equal and matching fund is not presented to the

Board of Public Works on or before January 1, 1965, no

funds under the provisions of this Act shall thereafter be

. paid over to or expended for the pu e of aiding in the

construction of a new science wing to Lewis Hall and a new

dining hall on the campus of Western Maryland College in

Westminster. .

Sec. 7. And be it further enacted, That until all of the

interest on and principal of any certificates issued under

this Act have been paid in full, there is hereby levied and

imposed an annual State. tax on each $100 of asséssable

property at the rate to be determined in the following man-

ner: on‘or before December 1, 1963, and on or before De-

cember 1 in each calendar year. thereafter, the Board of

Public Works shall certify to the governing bodies of each

of the Counties and Baltimore City the rate of State tax on

each $100 of assessable property necessary to produce reve- .

nues to meet all interest and principal which will be pay-

able to the close of the next ensuing calendar year on all

certificates theretofore issued or theretofore authorized by

resolution of the Board ef Public Works to be issued, and

the governing bodies of each of the Counties and Baltimore

City shall forthwith levy and collect such tax at such rate. ©

Hall and a new dining hall on the campus of Western Mary-

0

|

‘

~

6a

‘

All matters fo ted by this Act to the discretion of ;

the Board of Public Works shall be deterfhined by a major-

ity of said Board. ‘J

Sec. 8. And be it further enacted, That this Act shall

‘take effect June 1, 1963.

Approved April 30, 1963.

ni CHAPTER 545

. ! Senate Bill 641)

AN ACT to authorize the creation of a State debt in the

aggregate amount.of Seven Hundred and Fifty Thousand

Dollars ($750,000.00) for the purpose of aiding in the con-

struction of a new science building on the campus of ~

St. Joseph College of the Daughters of Charity of St.

Vincent de Paul, Inc., in Emmitsburg, subject to the re-

quirements that the said College, on or before January

1, 1965, shall have obtained elsewhere at least an equal

and matching sum for the same purposes; and providing

generally for the issue and sale of certificates of indebted-

ness evidencing this loan.

Section 1. Be it enacted by the General Assembly of

Maryland, That the Board of Public Works is hereby au+

thorized and directed to issue a State loan to be known

as the “St. Joseph College Loan of 1963”, in the aggregate

sum of Seven Hundred and Fifty Thousand Dollars

($750,000.00) .

The certificates avidiodinn: wid loan may be issued all

at one time or, in groups, from time to time, as hereinafter .

provided. All of said certificates evidencing said loan, or

any group thereof, shall be issued according to what is

known ‘as the serial annuity plan so worked out as to dis-

charge the principal represented by said certificates within

fifteen (15) years from the time of its issue; provided,

however, that it shall not. be necessary to provide for the

redemption of any part of the principal represented by any

certificate for the first two (2) years from the time of the

issuance of said certificates...

7a

- The Board of Publié¢ Works shall, and is hereby author-

’ ized and empowered to, pass a resolution or resolutions

from time to time, determining and setting forth:

(a) The proportion of the total loan authorized by this

Act which shall be issued at any particular time;

(b) The form of the certificate representing the loan or

any part thereof so authorized to be issued at any particu-

lar time, including any interest coupons to be attached

. thereto, and provisions for the issuance of certificates in

registered form, provisions for the registration of any

coupon certificates as to principal of loan and for the re-

conversion into coupon certificates of any certificates regis-

tered as to principal.

(c) The denomination or denominations of the certifi-

cates to be issued at any particular time, which may be

not less than One Hundred Dollars ($100) but.may be in

. sums of One Hundred Dollars ($100) or any suitable multi-

ple thereof, and the place or places of caine of princi-

pal and interest thereof.

(d) The rate of interest of the certificates to ra issued

at any particular time not exceeding in any case 4% per

annum, payable semi-annually.

(e) The date of the certificates issued at any particular

time, and within the limits prescribed by Article III, Sec-

tion 34 of the Constitution of Maryland the redemption

dates of said certificates. ‘

_ >

The resolution authorizing the issuance of said loan or

any portion thereof shall set forth in detail the dates when

any of the certificates representing said loan or any portion

thereof are to be redeemed and the amount to be redeemed |

upon sch dates respectively, according to the serial annu-

_ ity plan applied to said loan as a whole or to the group of

certificates evidencing a part of said loan issued at a par-

ticular time, as the case may be. Said loan and certificates

and every part thereof, and the interest payable thereon

shall be and remain nee from State, County and mu-

nicipal taxation.

os i

Sec. 2. And be it further enacted, That the Board’ of

Public Works is hereby authorized and directed to have -

prepared propewCertificates of Indebtedness of the State in

good and sufficient form to aggregate the amount of Seven

Hundred and Fifty Thousand Dollars ($750,000.00) as evi-.

dence of such loan; such Certificates of Indebtedness shall

bear date as of the time of their issue as provided in Sec-

tion 1 of this Act. Each of said certificates. shall be signed

and countersigned in the manner prescribed by Section 3

of Article VI of the Maryland Constitution.” .

Sec. 3.. And be it further enacted, That in order to pro-

vide for the selling of the Certificates of Indebtedness

aforesaid, to be issued under the provisions of this Act, the

Board of Public Works is hereby directed to advertise once

before the said Certificates of Indebtedness, or any part

thereof, shall be issued, in two newspapers published in

the City of Baltimore and in such other manner as the’

Board of @ublic Works in its discretion may determine,

that the Treastiter of this State will be in readiness at a

time within twenty (20) days after expiration of said notice

to receive bids at such place or places as may be named in

said respective advertisements for bonds or Certificates of

Indebtedness issued under the provisions of this Act; under

such regulations as may be made in the discretion of the

Board of Public Works; and the accrued interest between

the date of the bonds or Certificates of Indebtedness and

the time of sale and delivery of and payments for said

bonds or Certificates of Indebtedness shall be adjusted with

the purchaser thereof under such regulations as may be -

made in the discretion of the Board of Public Works; and

- upon the day mentioned in said advertisement’ as the day

for opening-the bids for the proposals thereby called for,

they shall receive such sealed proposals for the purchase .

of as many of such bonds or Certificates of Indebtedness

as may be mentioned or designated in said advertisements:

and on the opening of such sealed proposals, as many of

_ gaid bonds or Certificates of Indebtedness as have been so -

bid for shall be awarded by the Board of Public Works, to.

the highest responsible bidder or bidders therefor for cash,

ifthe prices bid are adequate, in the judgment of the Board

9a

of Public Works, ‘and when two or more bidders have made

the same bid, and such bid is the highest and the Certifi-.

cates so bid for by the highest. responsible bidder are in

excess of the whole amount of the Certificates offered for

sale, such bonds or Certificates of Indebtedness shall be

awarded to such responsible bidders bidding the same price

im a ratable proportion; or if any insufficient price be bid

for them, they may be subsequently disposed of under the

direction of the Board of Public Works at a private sale

upon the best terms they can obtain for the same; provided,

, they shall not be sold at private'sale for less than par and

accrued interest.

‘SEc. 4. And be it further enacted, That the sum of Ten

Thousand Dollars ($10,000), or so much thereof, as may be

necessary, shall be paid by the Treasurer of the State upon

the warrant of the Comptroller out of the proceeds ‘of the

sale of said bonds or Certificates of Indebtedness, fof the

payment of the expense of engraving, printing and other

outlays connected with the issue of the loan hereby author-

ized and for the payment of the advertising directed by

this Act, and all other incidental expenses connected with

the execution of its provisions in conneetion with said loan.

Sec. 5. And be it further enacted, That the. actual cash

proceeds of the sale of the Certificates of Indebtedness to

be issued under this Act shall be paid to the Treasurer of

the State upon the warrant of the Comptroller and such

proceeds shall be used en, for the _— pur-

Poses, to wit: :

The Comptroller shall immediately upon the sale of and

payment for said certificates, first return to and credit the

Treasury for a sum equivalent to the amount expended as.

provided for in Section 4 of this Act; the remainder of the

proceeds of said loan shall.be credited on the books of the

State Treasury Department, to be expended as needed by

the State, upon approval by the Board of Public Works,

_for the purpose of aiding in the construction of a new

science building on the campus of St. Joseph College of the

Daughters of Charity of St. Vincent de Paul, Inc., in

Emmitsburg.

a ee ee

* gies.

+

10a

_ Sec.'6. And be it further enacted, That the payment of

any funds undef the provisions of this Act, for the purpose _

of aiding in the constriction of a new science building on

the campus of St. Joseph College of the Daughters of Char-

ity of St. Vincent de Paul, Inc., ‘in Emmitsburg, shall be

_ contingent upon the provision by said St. Joseph College

of at least an equal and matching-fund from other sources,

including ‘the Federal government. The said College shall

have until January 1, 1965, to present evidence satisfactory

to the Board of Public Works that it has raised at least this

equal and matching fumd for the purpose of aiding in the

construction of a new science building on the campus of

St. Joseph College of the Daughters of Charity of St. |

Vincent de Paul, Inc., in Emmitsburg. Upon receiving from

the Board of Public Works 4 certification of such suitable

evidence,'on or before January 1, 1965, the Treasurer of

the State is hereby authorized, empowered and directed

to proceed to spend the proceeds of said loan agreeably to

the other provisions of this Act. If such satisfactory evi-

dence of the raising of at least an equal and matching fund .

is not presented to the Board of, Public Works on or before

January 1, 1965; no funds under the provisions of this Act

shall thereafter be paid over to.or expended for the purpose

of aiding in the construction of a new science building on

‘the campus of St. Joseph College of the Daughters of Char-

ity of St. Vincent de Paul, Inc., in Emmitsburg.

Sec. 7.. And be it-further enacted, That until all of the-

interest on and principal of any certificates issued under

this Act have been paid in full, there is hereby levied and

imposed an annual State tax on each $100 of assessable

property at the rate to be determined in the followmg man-

ner: on or before December 1, 1963, and on or before De-

cember 1 in each calendar year thereafter, the Board of

Public Works shall certify to the governing bodies of each

of the Counties and Baltimore City the rate of State tax on

each $100 of assessable property necessary to-produce reve-

nues to meet all interest and principal which will -be pay-

able to the close of the next ensuing calendar year on all

certificates theretofore issued or theretofore authorized by .

resolution of the Board of Public Works to be issued, and

dan ienissns Oi tii IRC ey bali: aie

SP a nla ne ta

BE Re cntenine Gar 2 ete oR aretiet iyo

“Ala

the governing bodies of oe the Counties and Baltimore

- City shall forthwith levy and collect such tax at such rate.

All matters committed by this Act to the discretion of the

-Board.of Public Works shall be determined by a majority.

of said Board.

Sec. 8. And be it further enacted, That this Act shall

take.effect June'l, 1963. |

Approved April 30, 106%.

“CHAPTER 66

(Senate Bill 134)

AN ACT to authorize the creation of a State debt in the

aggregate amount of seven hundred and fifty thousand.

dollars ($750,000) for the purpose of aiding in the con-

struction of a new science building on the campus of the

College of Notre Dame of Maryland, in Baltimore City,

subject to the requirements that the said College, on or

before January 1, 1964, shall have obtained elsewhere

at least an equal and matching sum for thé’ same pur-

poses; and providing generally for the issue and sale of

certificates of indebtedness. evidencing this loan.

Wuereas, The College. of Notre Dame of Maryland, lo-

cated in Baltimore.City, is an old and distinguished insti- -

tution of higher education, having contributed over many

years to the education of the youth of Maryland; and

WHEREAS, As a means of furthering its educational po-

tential, the College of Notre Dame of Maryland has begun

a campaign to provide a hew science building; and

Wuereas, This building would add vitally to the facilities _

of the College. of Notre Dame of Maryland, and would - .

eriable it to-vender even more valuable services than in

the past to the young people of Maryland; and

WHEREAS, Participation by the State of Maryland in this -

most worthwhile venture would not only help in educating

' wi

ot".

° 12a

the young people of Maryland, but glso would relieve

greatly crowded facilities in the several State institutions

of higher education; now, therefore,

Section 1. Be it enacted by the General Assembly of _.

Maryland, That the Board of Public Works is hereby au-

thorized and directed to issue a State loan to be known as

the “College of Notre Dame of Maryland Loan of 1962”,

in the aggregate sum of seven hundred and fifty thousand

dollars ($750,000).

‘The certificates evidencing said loan may be issued all

at one time or, in groups, from time to time, as hereinafter

provided. All of said certificates evidencing said loan, or

‘. any group thereof, shall be issued according to what is

@known as the serial annuity plan so worked out as to dis-

charge the principal represented by said certificates within

fifteen (15) years from the time of its issue; provided,

however, that it shall not be necessary to provide for the

redemption of any part of.the principal represented by any

certificates for the first two (2) years from the time of

the issuance of said. certificates. ‘ ,

The Board of Public Works shall, and is hereby authgr-

ized and empowered to, pass 4 resolution or resolutions

from time to time, determining and setting forth:

(a) The proportion of the total loan authorized by ‘this

Act which shall be issued at any particular time;

(b) The form of the certificate representing the loan or

any part thereof so authorized to be issued at any particular

time, including any interest coupons to be attached thereto,

and provisions for the issuance of certificates in registered

form, provisions for the registration of any coupon certifi-

cates as to principal of loan and for the reconversion into

coupon certificates of any certificates registered as to prin-

cipal.

(c) The denomination or denominations of the certifi-

cates to be issued at any particular time, which may be not

less than Qne Hundred Dollars ($100) but may be in sums

of One Hundred, Dollars ($100) or any suitable multiple

>

‘13a

hemes, ind the place or places of payment - principal

and interest thereof.

(d) The rate of interest of the certificates to. be issued

at any particular time not exceeding in any case 4% per

_annum, payable semi-annually.

(e) The date of the certificates issued at any particular

, and within the limit prescribed by Article III, Section

Sod the Constitution of Maryland the redemption dates of,

said certificates,

The resolution authorizing the issuance of said loan or

any portion thereof shall set forth in detail the dates when

any of the certificates representing said loan or any portion

thereof are to be redeemed and the amount to be redeemed

upon such dates, respectively, according to the serial an-

nuity plan applied to said loan as a wholeor to the group —

of certificates evidencing a part of said loan issued at a

particular time, as the case may be. Said loan and certifi-

cates and every part thereof and the interest payable |

thereon shall be and remain exempt from State, County

and municipal taxation.

Sec. 2. And be it further enacted; That the Board of

Public Works is hereby authorized and directed to have

prepared proper certificates of indebtedness of the State

in good and sufficient form to aggregate the amount of

seven hundred and fifty thousand dollars ($750,000), as

eviglence’ of such loan; such certificates of indebtedness .

shall bear date as of the time of their issue as provided in

Section 1 of this Act. Each of said certificates shall be.

signed and countersigned in the manner prescribed by

Section 3 of Article VI of the Maryland Constitution.

Sec. 3. And be it further enacted, That in order to pro-

vide for the selling of the certificates of indebtedness afore-

said, to be issued under the provisions of this Act, the Board

of Public Works is hereby directed to advertise once before ~

the said certificates of indebtedness, or any part thereof,

shall be issued, in two newspapers published in the City

of Baltimore and in such other manner as the Board of.

Public Works in its discretion may determine, that the

‘ l4a

Treasurer of this State, will be in readiness at a time with-

in twenty (20) days after expiration of said notice to re-

ceive bids at such place or places as may be named in said

respective advertisements for bonds or certificates of in-_ .

debtegness issued under: the provisions of this Act, under

such regulations as may be made in the discretion of the

Board of Public Works; and the accrued interest between

the date of the bonds or‘certificates of indebtedness and

the time of sale and delivery of and payments for said

bonds or certificates of indebtedness shall be adjusted with

the purchaser thereof under such regulations as may be

made in the discretion of the Board of Public Works; and

.upon the day mentioned in ‘said advertisement as the day

for opening the bids for the proposals thereby called for,

they shall receive such sealed proposals for the purchase

of as many of such bonds or certificates of indebtedness as

may be mentioned or designated in said advertisements;

and on the, opening of such sealed proposals, as many of

said bonds or certificates of indebtedness as have been so

bid for shall be awarded by the Board of Public Works,

to the highest responsible bidder or bidders therefor for

cash, if the prices bid are adequate, in the judgment of the

- Board of Public Works, and when two or more bidders

have made the same bid, and such bid is the highest and

the certificates so bid for by the highest responsible bidder

are in excess of the whole amount of the certificates offered

for sale, such bonds or certificates of indebtedness shall be

awarded to such responsible bidders bidding the same price

in a ratable proportion; or if any insufficient price be bid

for them, they may be subsequently disposed of under the

direction of the Board of Public Works at a private sale

upon the best terms they can obtain for the same; pro-

vided, they shall not be sold at private sale for less than

par and accrued interest. °

Sec. 4. And be it further enacted, That the sum of Ten

Thousand Dollars ($10,000), or so much thereof as may be

necessary, shall be paid by the Treasurer of the State upon

the warrant of the Comptroller out of the proceeds of the

sale of said bonds or certificates of indebtedness, for the

payment of the expense of engraving, printing and*other

15a

outlays connected with the issue of thé loan hereby author-

ized and for the payment of the ad-ertising directed by

this Act, and all other. incidental expenses connected with

the execution of its provisions in connection with said loan. -

Sec. 5. And be it further enacted, That the actual cash

proceeds of the sale of the certificates of indebtedness to

-be issued under this Act shall be paid to the Treasurer of

the State upon the warrant of the Comptroller and such ~

_ proceeds shall be used exclusively for the following pur-

poses, to wit: | .

The Comptroller shall immediately upon the sale of and

payment for said certificates, first return to and credit the

Treasury for a sum equivalent to the amount expended as

provided for in Section 4 of this Act, the remainder of the

proceeds of said loan shall be credited on the books of the

State Treasury Department, to be expended as needed by

the State, upon approval by the Board of Public Works,

for the purpose of aiding in the construction of a new

science building on the campus of the College of Notre

Dame, in Baltimore City. foe

Sec. 6. And be it further enacted, That the payment of

any funds under the provisions of this Act for the purpose .

of aiding in the construction of a new science building on

the campus of the College of Notre Dame, in Baltimore

City, shall be contingent upon the provision by the College

of Notre Dame of Maryland df at least an equal and match-

ing fund from other sources, including the Federal govern-

ment. The said College shall have until January 1, 1964, to

present evidence satisfactory to the Board of Public Works

that it has raised at least this equal and matching fund for”

the purpose of aiding in the construction of a new science

building on the campus of the College of Notre Dame, in

Baltimore City. Upon reéeiving from the Board of Public

Works a certification of such suitable evidence on or before

January 1, 1964, the Treasurer of the State is hereby au-

thorized, empowered and directed to proceed to spend the

proceeds of said loari agreeably to the other provisions of

this Act. If such satisfactory evidence of the raising of at

ee 16a

]@ast an equal and matching fund is not presented to the

Board of Public Works on or before January 1, 1964, no

funds under the provisions“of this Act shall thereafter be

paid yver to or expended for the purpose of aiding in

ction of a new science building on the campus

of the Colleg@ef Notre Dame, in Baltimore City.

Sec. 7. And be it further enacted, That until all of the

interest on and principal of any certificates issued under

this Act have been paid in full, there is hereby levied and

imposed an annual State tax on each $100 of assessable

property at ‘the rate to be determined in the following

manner: on or before December 1, 1962, and on or before

December-tin each calendar year thereafter, the Board of

Public Works shall certify to the governing bodies of each

of theCounties and Baltimore City the rate of State tax

on each*$100 of assessable property necessary to produce

revenues to meet all interest and principal which will be

_ payable to the close of the next ensuing calendar year on

all certificates theretofore issued or theretofore authorized

by resolution of the Board of Public Works to be issued,

and the governing bodies of each of the Counties and Balti-

more City shall forthwith levy and collect such tax at such

rate.

All matters committed by this Act to the discretion of

the Board of Public Works shall be determined by a ma-

»

jority of said Board. re

Sec. 8. And be it further enacted, That this Act shall

take effect June 1, 1962.

_ Approved March 23, 1962.

—

A, eee ee ee

Oe el

17a

APPENDIX B

OPINION OF THE COURT OF APPEALS

OF -MARYLAND

The Horace Mann League of The United States of

America, Inc., et al.

V.

Board of Public Works of Maryland, et al.

No. 356 September Term, 1965 Filed June 2, 1966

Appeal from the Circuit Court for Anne Arundel County

Honorable O. Bowie Duckett, Judge

Argued before: Prescott, C.J.. Hammond, Horney, Mar-

- bury, Oppenheimer, and Thomas J. Keating, Jr. (Spe-

cially assigned) and Ralph W. Powers (specially as-

signed), JJ.

Opinion by Prescott, C.J.

Dissenting Opinion, in part, by Hammond J. in which

Horney and Marbury, JJ. concur

Prescott, C.J.

After dismissal of their bill of complaint, which chal-

lenged the validity, as violating the Federal and Maryland

Constitutions, of four separate statutes, providing outright,

matching grants, totaling $2,500,000,for the cofstruction

of buildings, to four private colleges, the plaintiffs appealed.

The four colleges and appropriate public officials were

named as defendants; injunctive relief and a declaration to

the effect that the grants were unlawful were prayed.

. of the Maryland Constitution.

18a

The questions involved have been briefed and argued

with signal care, skill, and ability by counsel for the re-

spective parties. - - ;

“The appellees contend that appellants lack ‘standing to

invoke the jurisdiction of the courts. The principal issue,

of course, is whether any one (or more) of the statutes

violates the First and Fourteenth Amendments to the

Federal Constitution, or Articles XV, XXIII, or XXXVI of

our Declaration of Rights. Appellants concede that some

degree of relationship to church or religion may exist in

‘an educational institution without rendering it “sectarian”;

they contend, however, that when such a relationship is |

“substantial,” it renders the institution sectarian and grants

of public funds may not constitutionally be made to it.

Four of the appellees state that the colleges involved “are

admittedly related in varying degrees to particular re-

ligious denominations,” but urge that there is no consti-

‘tutional proscription against a state granting “public funds

_to a sectarian college, nor is there anything in either con-

stitution which forbids grants for educational purposes to

colleges which bear a substantial relation to a church.”

We think the orderly and efficacious sequence in which to

consider these issues is first to determine the question

of standing, for if the appellees prevail thereon, it will con-

trol the entire appeal; next to decide the test to be applied

to the statutes in determining whether they are constitu-

tionally permissible or impermissible under the First

Amendment; then to apply that test to the facts in the

record pertaining to the individual colleges; and finally to »

consider whether the grants violate the named sections

ed

THE STANDING OF THE PARTIES PLAINTIFF

The Chancellor held that the Horace Mann League of

the United States of America, Inc., lacked standing. We

agree. It is a non-profit educational and charitable Mary-

land corporation organized, as claimed by it, for the pur- .

pose of fostering and strengthening the American public

school system.

19a

It argues that-the Chancellor “took an unduly restrictive

view of the status in modern jurisprudence of organiza-

tions formed to protect the public interest * * *,” ask us to

compare several Federal cases in which the N.A.A.CP.

participated as a party, and to consider several law-review

articles relative thereto. We have considered the same,

but find nothing therein which would warrant our depart-

ing from the former rulings of this Court. The Chancellor

was correct in his ruling. Citizens Committee v. County

Commissioners, 233 Md. 398; Bar Association v. District

Title Co., 224 Md. 474. 7

The appellees challenge the standing of the individual

appellants on two grounds: (a) “the miniscule dimensions

of the plaintiffs’ financial stake in the challenged programs

* * *”: and (b) that if Maryland were required to educate

the Maryland students who néw attend the appellee col-"

“leges, the cost would be much greater to the State than

the grants under consideration. °

~. (a)

Most of the appellees, rightly we think, concede that the

recently decided case of Murray, Etc.,.v. Comptroller, 241

Md. 383, fatally undermines their argument here. Having

so recently considered and enunciated our conclusions on

the question, it would be a useless gesture to élaborate

further thereon. We hold that Murray is controlling on this

point, and the individual appellants. do not lack standing

for the reasons there assigned.

(b)

’ There are a number of answers to this coritention.. We

shall name but two. All of the parties agree that the issues

here presented are of great publie interest and concern.

When this is the case, the necessary interest or injury to

- sustain standing to institute a taxpayer’s suit is “broadly

comprehensive” and may be “slight.” In Baltimore Retail

Liquor Stores Ass’n v. Liquor License Comm’rs, 171 Md.

426, this Court stated its opinion on the merits, even though

~ 20a

the plaintiffs lacked technical standing. For other cases

wherein there were similar holdings or the principle recog-

nized see Citizens Committee v. County Comm'rs, etc.,

supra; Hammond v. Lancaster, 194 Md. 462; Dutton v.

‘Tawe$, 225 Md. 484. We agree with the parties that the

issues are of general and urgent public interest, and:they

are of sufficient importance and magnitude to invoke the

above principle, if the factual situation rendered it neces-

sary to do so. ,

However, we do not find it necessary to base our con-

clusion that the individual appellants have standing on the

above theory, alone. In Berghorn v. Reorganized School

District No. 8, 260 S.W. 2d 573 (Mo.), taxpayers’ standing

to sue to prevent expenditures of state funds for religious

schools was attacked on the ground that the challenged ex-

penditure would cost plaintiffs less than the taxes they

would be required to pay if the students at such religious

schools were educated in the public schools. In sustaining

_ plaintiffs’ standing and granting relief, the court stated:

“In determining a taxpayer’s pecuniary injury re-

sulting from the unlawful expenditure of public funds,

we may not weigh lawful expenditures against unlaw-

ful expenditures, because no legal injury results from ©

the lawful expenditures of public funds.”

We agree with the Missouri ‘Court. Also compare this

Court’s holding in McKeldin v. Steedman, 203 Md. 839,

wherein the same principle was applied, although no re-

ligious issue was there involved, and Abington School Dist.

v. Schempp, 374 US. 203, n. 9. ! |

Further on the question of standing, appellees argue that

if the suit had been instituted in a Federal court, appellants

would have lacked standing to attack the grants as being ~

impermissible under the United States Constitution; hence

the Maryland courts should not permit them to challenge -

state statutes as being violative of the Federal Constitution *

in the state courts. Again, the Murray case, supra, supplies

the quick answer, wherein Judge Oppenheimer, for the

Court, said:

tks a SPN eet Ame ee Fm

.

2la

“When the validity of a state statute is attacked in a

state court, it is the duty of that court to determine all

the constitutional issues involved, federal as well as

state. If the statute is held valid under the state law,

but invalid under the federal Constitution, the state .

court must give the complainants the relief they pray. -

** *. If they have standing under the law of Maryland

to bring the suit, it is irrelevant that the result might

have been different had the action been instituted in

a federal court.” 241 Md. p. 392.

We hold that the Chancellor was correct in ruling that

the individual appellants had standing. :

THE Test To Be AppiLiep

It should be noted at the outset that nothing in this opin-

ion is intended as a criticism of, or a boost to, any religion,

sect, or schism, or lack of religion. Our task is to decide a

constitutional issue. We proceed to do just that, and that

alone. : ,

For our present, purposes, it will be unnecessary to in-

clude an extended historical background: of the First

Amendment’ (which, of course, is likewise pertinent, in

large measure, to Article.XXXVI of our Declaration of

' Rights). However, it seems- appropriate to set forth a

sketchy outline of some of the facts which the Framers of ©

our Federal Constitution and the First Amendment thereto

had in mind when the Amendment was added.. In about °

112 A.D., Pliny wrote to the Roman Emperor Trajan to in-

quire whether he was dealing out exact justice to Chris-

tians who had done nothing in violation of the law. He

stated that he asked thrice if the person charged (man,

1 Those interested in pursuing this aspect of the case further will

find interesting, instructive, and rather comprehensive treatments of

the subject in Justice Black’s opinion in Eversorr v. Board of Educa-

tion, 330 U.S. 1, in Justice Frankfurter’s opinion in McCollum v.

Board of Education, 333 U.S. 203, in Justice Clark’s opinion in

Abington School Dist. v. Schempp, supra, Justice Rutledge’s dissent ’

in Everson, supra, and in 2 Cooley’s Constitutional Limitations, pp.

* 960-985.

22a

woman, or child) were a Christian. If the person answered

in the affirmative 3 times, he or she was executed. Trajan

answered, “My Pliny — you have taken the method which

you ought * * *.”? The persécution of the Christians. by

the heathens continued {by throwing them to the lions, etc.,

as every school child is taught) until about A.D. 313, when

Emperor Constantine embraced their belief; and later in

the 4th century Christianity became the official religion of

Rome.

After Christianity became the established Church of

Rome and the Church gradually increased in wealth and

power, there constantly developed disputes in the various

provinces between the Roman bishops and the civil author-

ities as to their respective authority. In time, the Church

became so rich and influential that certain of the Popes

felt free to assert their authority as being superior to that

of the reigning Sovereigns. This, naturally, developed

angry and deep-rooted conflicts and controversies between ~

the Papacy and some of the nations, and also between -na-

tions, themselves, depending upon whether or not they

agreed with the Papacy. |

The religious Crusades (about 1096 to 1270) are also sub-

jects which are still taught to nearly every school child.

- They engaged, off and on for some 200 years, practically

all of the continental European nations and England in

costly and cruel warfare in attempts to capture and to hold

the Holy Land. In these conflicts, not only reigning mon-

archs and nobility participated in actual combat but also

Church bishops and clerics: A fact concerning the Cru-

sades, not so generally known as the above, is that two of _

them were armies of about 30,000 and 20,000, respectively,

composed of small boys and girls, many of ‘whom, quite ©

naturally, died.* : 7

We pass over a short period of time, in which the un-

bridled fervor and fanaticism of the Church grew and ex-

21 The Genuine Works of Flavius Josephus (dissertation), pp.

63-65.

3 3 World Book Ency., p. 928.

23a

panded, to the origin of the Spanish Modern Inquisition

(about 1481). Frequently this fervor vied with secular

authority and caused most important incidents such as the

murder of Saint Thomas A. Becket, the Roman Catholic

Archbishop of Canterbury, while at vespers, in 1170 A.D.‘

‘Because of his opposition to royal authority, Henry II is

reputed to have said in the presence of his knights: “Have

I not about me one man: of enough spirit to rid me of a

single insolent prelate?” Four knights immediately accepted

the “commission,” and carried out the king’s expressed de-

sire. Another important event occurred shortly thereafter *

(about 1208). Pope Innocent III commanded a delegation

_ of the monks at Canterbury to select Stephen Langdon

archbishop in place of a person whom King John had com-

pelled them to elect. The King refused to permit Langdon

to land in England. After trying other measures, the Pope

“deposed” John and ordered King Philip of France tp seize

the English Crown. In the end John was forced to accept

Langdon, and in addition to promise to pay a tax of some

$64,000 (in current money) a year for permission to keep .

his crown. = =

We need not dwell long on the horrors and perfidies of

’ the Inquisition, but to understand the intensity of feelings:

motivating the persecutions of this era, it is necessary to

know the teachings of the Church at that time and what the

law of the civil authorities authorized. We quote a few

excerpts from authorities relative thereto:

“Acts of intolerance are to be discerned from the

earliest period in which Christianity became the estab-

lished religion of the Roman Empire. But they do not

seem to have flowed from any systematized plan of

persecution, -until the papal authority had swollen to

a considerable height.” 3 |

‘ * x - a * ae *

“In the present liberal state of knowledge [about

1837], we look with disgust at the pretensions of any

* 3 The World Book Ency.; p. 150. A pilgrimage from London to

Canterbury, where the Saint was buried, is, of course, the theme of

‘Chaucer’s famous “Canterbury Tales.”

24a

human being, however exalted, to invade the sacred

rights of conscience, inalienably possessed by every

, man

"6

‘ “But, to judge the. action fairly, we must transport

ourselves to the age when it happened. The difficulty

that meets us in the outset is, to find a justification of

the right of conquest, at all, But it should be remem-

bered, that religious infidelity, at this period, and till

‘a much later, was regarded — no matter whether

founded on ignorance or education, whether heredi-

tary or acquired, heretical or Pagan — as a sin to be

punished with fire and faggot in this world, and eternal

nearly, every nation’ in Christendom. Under. this code,

of the heathen, wherever found, was

a sort of religious waif, which, in defaylt

of a legal proprietor, was claimed and taken possession

of by the Holy See, and as such was freely given away

by the head of the Church, to any temporal potentate

whom he pleased, that would assume the burden of .

conquest. ‘Thus, Alexander the Sixth generously

g

3

|

acknowledged and appealed to as conclusive in con-

troversies between nations.’ |

We move to a later date (around 1500) and see the

conflicts and controversies between Church and State

_ continuing.

51 Prescott’s Ferdinand and Isabella, pp. 230, 231.

© Prescott’s Conquest of Mexico, pp. 30, 31. Lea, A History of

_’ the Inquisition in the Middle, Ages.

25a

“We shall conclude this Chapter by a melancholy

truth which obtrudes itself on the reluctant mind; that .

even admitting * * * all that history has recorded * * *

on the subject of martyrdoms, it must still be acknow]l-

edged that the Christians in the course of their intestine

dissentions, have inflicted far greater severities on

each other than they had experienced from the zeal of

the infidels. * * *. Inthe Netherlands alone more than

100,000 of the subjects of Charles V are said to have

suffered by the hand of the executioner.’”

The protracted controversies between Henry VIII and

the Papacy, with attendant executions, were, and are, well

known. They resulted in a series of enactments of Parlia-

ment which severed the great financial, legal, and admin-

istrative ties which had joined the English state with

Western Christendom,. and the English Church with the

Holy See. The Act of Supremacy declared Henry the head

of fhe Church of England and the inheritor of the juris-

diction of the Bishop of Rome. After the knowledge of

_ Several “judicial murders” in England reached Rome, the

‘Pope issued a bull which excommunicated Henry, de-

livered his soul to Satan, and his kingdom to the first

invader. The King replied by sequestering and, after

pillaging, destroying a large number of religious houses*

(reputed as 645 monasteries, 2374 chapels, 90 collegiate

churches and 110 charitable institutions).

Six years after the death of Henry, his daughter Mary

ascended the throne. She was a devout Roman Catholic,

and did everything she could to re-establish that Church in

England. She resumed old relations with the Pope, and

to accomplish her objectives in supporting her religion, she

resorted to the arguments of the dungeon, the rack and the

fagot, and, when her bishops slackened their work of per-

secution and execution, she urged them not to stay their

hands.’ The penalty for reading the English Scriptures or

7 II Gibbon, The Decline and Fall of the Roman Empire (Smeaton

_ ed.), pp. 197, 198,

rf |p sterndadarang The —— of English History, pp. 197, 198.

* Montgémery, op. cit., p.

26a

offering Protestant prayers was death."° Montgomery, op.

cit. in footnote 8, at p. 209, says that Mary’s state of mind

was the same as all who then held strong convictions, and

“each party believed it a duty to convert or exterminate

the other, and the alternative offered to the heretic was to

‘turn or burn’.” |

Elizabeth I (1558-1603) succeeded her sister Mary on

the throne, and we are now approaching the period when

the first permanent English colonies were to be established

on this continent. Her ascension was followed by the re-

peal of many of the religious laws enacted in Mary’s reign,

the enactment of a new Act of Supremacy, and an adoption

of a revised version of the religious beliefs of the English —

Church, formulated under Edward VI (1547-1553). Com-

menting on these and other enactments, Montgomery, op.

cit. at p. 214, states: “The reason for these stringent mea-

sures was in that age Church and State were everywhere

considered to be inseparable. No country-in Europe — not

even in Protestant Germany — could then conceive the

idea of their existing independently of each other. Who-

ever refused to support the established form of worship,

whatever that might be, was looked upon as a ‘rebel’ against

the government.” (Emphasis added.)

The number of Puritans, Protestants who did not believe

that the tenets of the Established Church of England went

far enough in “purifying” that Church from Roman influ-

ences, grew by leaps and bounds in the last half of Eliza-

beth’s reign. Before James I was crowned (1603), they

presented a great Petition to him requesting certain rights

and privileges. The “requests were denied and James

avowed he would make all conform to the Established

Church or leave the country.. In despair but with firm de-

termination, a band of these Puritans, not being able to

obtain a royal license to go to America, emigrated (about

1608) to Holland where they remained for 12 years. Finally

James granted them permission to go to America, so in

10 Benjamin Franklin, one of the Framers, gives an interesting

account in his autobiography of how one of his ancestors circumvented

this proscription.

27a

1620 (just 2 years after the beginning of the devastating

religious war in Europe called the Thirty Years’ War, and

29 years before the Puritans murdered King Charles I) our

Pilgrim Fathers set sail for this country, being the first

Englishmen to flee from religious persecution, seeking an

asylum in this country where they could worship accord-

ing to the dictates of their consciences.

We shall narrate, briefly, two other events that occurred

in Europe, and do so because of their importance to, and

influence over, the colonies of this country as they de-

veloped. We mentioned above the Thirty Years’ War (1618-

1648); it began as a civil war between the Protestants and

the Roman Catholics in the German States, but before it

was over nearly all of the nations of Europe became in-

volved. One authority gives the following account of the

results thereof:

“Germany was in a pitiable condition by the time

the war finally ended. More than half the people had

been killed. Those who survived saw nothing but ruin

wherever they loked. Whole cities, villages, and farms

_had disappeared, and two thirds of all the property

had been destroyed. Art, science, trade, and industry

languished. It took about two hundred years for Ger-

many to recover from the effects of [this war]. Thou-

sands of persons left Europe, especially Germany, and

went to America to build a new life.”"' (Emphasis

added. )

Finally, we mention the fate of the Huguenots in France.

They were French Protestants, who grew into sizable pro-

portions in the 1500’s and 1600’s. A civil war broke out

between them and the Roman Catholics. Without going

into the sad details of that unfortunate conflict, the Hugue-

nots, after much bloodshed and many deaths, were given

freedom of worship in about 75 towns and cities by the

1117 The World Book Ency., 200; see also 2 World’s Best

Histories, Germany, Part XVIII. D Encyclopedia Brittanica, pp. 136

et seq.

28a

Edict of Nantes (1598), but they again lost the same in

1685, when Louis XIV repealed the Edict. Again we find: |

“Thousands of Huguenots fled France to new homes

in England, Germany, Holland, and America: . Many

settled and prospered-in South Carolina, Virginia,

Massachusetts, and New York [emphasis ours]. Among

such Huguenots were the Legare, Petigru, Maury, Re-

vere, Jay, and DeLancey families.””* .

We shall not discuss in detail the complexities that arose

concerning Church and State in each of the Colonies. It

seems obvious that our revered Pilgrim Fathers, who had

come here to seek religious freedom, were not inga mood

to grant complete religious freedom of thought to all others. _

We all know of the banishment of Roger Williams. It also

is apparent that Maryland’s vaunted Toleration Act of 1649

granted religious tolerance only to Christians, and it is

entirely possible that it was prompted, at least in part, by

expediency. The Puritans had taken over the government

in the Mother Country in the early part of that year, and

the Lord Proprietor, in order to strengthen his position with

the Home Government had issued invitations to settle here

to the New England Puritans and those of Virginia, where

Governor Berkeley, in spite of the Puritan successes in

England, remained a Royalist and an adherent of the An-

glican Church. Andrews, The Founding of Maryland, Ch.

XII. We close our remarks concerning the colonies with

the observation that at least 8 of them had Established

Churches before the Revolution; and Virginia, after a

struggle lasting about 7 years had defeated a Bill which

would have permitted taxation to support religions and

12 8 World Book Ency., p. 375. For a rather detailed account of the

trials and tribulations of the Huguenots, and the extreme provisions

of the Resolution revoking the Edict of Nantes — demolition of all

chapels, interdiction. of any assembly or worship, all ministers to-

leave the kingdom within 15 days, all schools closed, new-born babies

to be baptized by the parish priests, Huguenots forbidden to leave the

_ kingdom on pain of galleys for the men, and confiscation of person

and property for the women, etc, — see IV The World’s Best His-

tories, France, Ch. XLVII. 7

29a

had enacted Jefferson’s Bill for Establishing Religious Free-

dom, in 1786. (Fg an instructive and more comprehensive

treatment of the situation in the Colonies, see Justice

Black’s opinion in Engel v. Vitale, 370 U.S. 421.)

Thus it is seen that the Framers knew man’s difficult-to-

suppress (and still unextinct) desire to persuade, and fail-

ing in persuasion, to compeljothers to adopt and believe .

his religious views, and marfs unswerving determination

to select the religious views \nost a ling to’ him indi-

vidually and his quest to believ€ those views and to wor-

ship without fear or favor had been potently divisive forces

ever since the deeds of mankind had been recorded. So

great had been the impact of the latter determinants that

neither dungeons, mortally bleak winters in far-distant

colonies, plain executions, wholesale burnings at the stake,

nor the prolonged and “exquisite” agonies produced by the

tortures of machinations developed by the most ingenious

minds of the ages (i.e. “persecution inperfection”) had

_ dissuaded man in his pursuit of religious freedom and re-

ligious equality.

Even though the above is but a sketchy outline of the

subject involved (as we stated above), we have set the

same forth at some length to demonstrate that the problem

to be considered and solved when the First Amendment

was proposed was not one of hazy or comparative insig-

nificance, but was one of blunt and stark reality, which

had perplexed and plagued the nations of Western Civil-

ization for some 14 centuries, and during that long period,

the union of Church and State in the government of man

had produced neither peace on earth, nor good will to man.

~. In an attempt to prevent recurrences of many of the

unfortunate evils mentioned above (and those mentioned

in the opinions named in footnote 1) our forebears decided

it was best for Government, best for Religion and best for

mankind that the two be kept separate and apart. In order

to effectuate this goal, the First Amendment was adopted

which provides that “Congress shall make no law respect-

ing an establishment of religion, or prohibiting the free

ly

30a

exercise thereof * * *.”’* A narrow and literal reading of

the same might cast some doubt as to whether our present

factual situation presents any question relative to an

“establishment” of religion, but we shall point out below

that the Supreme Court has not construed the Amendment .

in such a narrow fashion as to éxclude the issues here

raised from its purview. See, for example, McCollum ‘v.

Board of Education, supra, 333 U.S. at p. 213.

Before considering the Supreme Court decisions, we shall

dispose of two subordinate arguments advanced by the

appellees. Under the heading of Legislative Practice, they

_ set forth large and imposing grounds made by Congress

to various institutions and programs ‘sponsored by govern-

mental agencies and departments. The actions of the Leg-

islative Branch are, of course, entitled to consideration

and respect, Murray, Etc. v. Comptroller, supra, 241 Md.

at p. 400; but they are not controlling in the determination

_of a direct and specific constitutional attack dn an indi-

vidual statute. Schempp, McCollum, and Engel, all supra,

and Torcaso v. Watkins, 367 U.S. 488, wherein the Supreme

Court uprooted long-standing and established practices

sanctioned.by legislative and state constitutional provisions.

They also argue that if the grants herein be invalidated,

that no state grant to any educational institution could be

sustained,- unless every vestige of officially sponsored re-

ligious observances be entirely divorced from the institu-

tion. The appellants label this “appellees all-or nothing

argument.” The argument loses sight, we think, of the

fact that there is a constitutional difference between a

sectarian institution and a secular one, which. may offi-

cially sponsor one or more religious observances. We shall

point out the test to be applied below.

This brings us to a consideration of the Supreme Court

decisions bearing on the questions here involved. The par-

ties on both sides of the controversy have carefully an-

‘18 At this late date, it requires no citation of authority to assert

that the same proscription applies to the states through the Fourteenth

Amendment.

3la

alyzed the same in their briefs. Justice Clark did likewise

in his opinion in Schempp, supra, as to the decisions pre-

ceding it. However, we do not deem it necessary or desirable

to take up each of these decisions and analyze them in

detail, for this Court has very recently stated their rationale

in Murray, Etc., supra (241 Md. at pp. 398 and 401, involving

church exemptions from taxation), where Judge Oppen-

heimer, for the Court without dissent, said:

“In our reading of the opinions, however, we find

broad guide lines which form the frame within which

the case before us is to be considered. We are a re-

- ligious people and recognize the effect religious in-

stitutions have on human activity. The First Amend-

ment was designed to erect ‘a wall of separation be-

tween church and State” Mutual independence, under

our Constitution, is deemed best for the State and best

for religion. The State cannot forbid,»nor can it

_ perform or aid in performing the religious function.

Like” r broad constitutional concepts, the meaning

of ‘separation’ is to be ascertained in the application

of the principle to specific cases. A state cannot pass

a law to aid one religion or all religions, but state

action to promote the general welfare of society, apart

from any religious sniaestiaie;| is valid, even though

religious interests may be indirectly benefited. If the

primary purpose of the state action is to promote re-

ligion, that action is in violation of the Amendment,

but if a statute furthers both secular and religious

ends, an examination of the means used is necessary

to determine whether the state could reasonably have

attained the secular end by means which do not fur-

ther the promotion of religion.” (Emphasis added.)

* * * * * * wi

“As McGowan makes clear, even though the ex-

emption had an unmistakenly. religious origin, if the

present’ purpose and effect of the exemption is pri-

marily secular, and if those secular purposes could

- not reasonably be deemed achievable without an inci-

32a

dental benefit to religious organizations, the ‘estab- ©

lishment’ clause is not violated.’’*

14 The above rationale is supported and emphasized by so many

statements in the Supreme Court’s decisions that one is at a loss to

know where to start and where to end in naming them. We set forth

a few. “These words of the First Amendment reflected in the minds

of early Amerieans a vivid mental picture of conditions and practices

which they fervently wished to stamp out * * *,”- “These practices

|the collection of taxes and tithes to sustain government-sponsored

churches] ‘became so commonplace as ‘to shock the freedom-loving

colonials into a’ feeling of abhorrence. * * *. The people there [in .

Virginia], as elsewhere, reached the conviction that individual re-

ligious liberty could be achieved best under a government which was

stripped of all power to tax, to support, or otherwise to assist any or

all religions * * *.” After quoting from the celebrated “Virginia Bill

for Religious Liberty,” 12 Heming, Statutes of Virginia (1823) &,

originally drafted by Jefferson, stating that “Almighty God hath cre-

ated the mind free; that all attempts to influence it by temporal * * *

burthens * * * tend only to beget habits of hypocrisy and meanness

* * *,” and “that to compel a man to furnish contributions of money

for the propagation of opinions which he disbelieves, is sinful and

tyrannical * * *,” the Supreme Court “* * * recognized that the pro-

visions of the First Amendment * * * had the same objective and

were intended to provide the same protection against governmental

intrusion on religious liberty as the Virginia statute.” * * *. “New.

Jersey cannot consistently with the ‘establishment of religion’ clause

* * * contribute tax-raised funds to the support of an institution

which teaches the tenets and faith of any church. ” All from the

majority opinion in Everson, supra.

_ “With Jefferson, Madison believed that to tolerate any fragment

of establishment would be by so much to perpetuate restraint upon

that freedom [general freedom]. Hence he sought to tear out the

“institution not partially but root and branch, and to bar its return

forever.”

“In no phase was he [Madison] more unrelentingly absolute than

in opposing state support or aid by taxation. Not even ‘three pence’

contribution was thus to be exacted from any citizen for such a

purpose.” Memorial and Remonstrance against Religious Assess-

ment. [The Mémorial is set forth in Appendix, 330 U.S. pp. 63

et seq.] * * *. “Their objection was not to small tithes. It was to _

any tithes whatsoever. * * * Not the amount but the ‘principle of

assessment was wyong.’” * * *. “In view of this history no further

proof is needed that the Amendment forbids any appropriation, large

or small, from public funds to aid or support any and all religious

exercises.” A few excerpts from Justice Rutledge, with whom Jus-

4 Di ote Achar Shae RR

33a

There are two celebrated passages in the opinions of the

Supreme Court. relating to the provisions concerning re-

ligion in the First Amendment: the first is in Everson; the

other is in Schempp. Justice Black, for the Court, in

Everson, said:

“The ‘establishment of religion’ clause of the First

Amendment means at least this: Neither a state nor

‘tices Frankfurter, Jackson, and Burton concurred in Everson, supra,

dissenting.

In McCollum, supra, interested members of the Jewish, Roman

Catholic, and some of the Protestant faiths formed a voluntary asso-

ciation. They obtained permission from a Board of Education to

offer classes in religious instruction in the public schools. “The

foregoing facts * * * show the use of tax-supported property for ©

religious instruction * * *. The operation of the State’s compulsory

education.system thus assists and is integrated with the program of

religious instruction * * *. This is beyond all question:a utilization

of the tax-established and tax-supported public school system to aid

religious groups to spread their faith. And it falls squarely under

the, ban .of the First Amendment * * *.” “The State also affords

sectarian groups an invaluable aid in that it helps to provide pupils

for their religious classes through use of the State’s compulsory

public school machinery. This is not separation of Church and State.”

From the Court’s opinion in -McCollum, supra.

Justice Frankfurter, with whom Justices Jackson, Rutledge and

Burton agreed in his-concurring opinion in McCollum, supra, said:

“Tllinois has here authorized the commingling of sectarian with

secular instruction in the public schools. The Constitution of the

United States forbids this.”

* * * x x *

“Separation means separation, not :something less. Jefferson’s

metaphor i in describing the relation between Church and State -

of a ‘walf of separation,’ not of a fine line casily overstepped.”

‘In Engel, supra, it was stated:

“The? knew the anguish, hardship and bitter strife that could

come when zealous religious groups struggled with one another’ to

obtain the Government’s stamp of approval from each King, Queen,

or Protector that came to temporary power.”

“When the power, prestige and financial support of government

‘is placed behind a particular religious belief, the indirect coercive

pressure upon religious minorities to conform to the prevailing offi-

cially approved religion is plain.”

Among many other cogent statements in Schempp, we find the

following :

“There is no answer to the proposition * *. * that the effect of

the religious freedom Amendment to our Constitution was to take

-

a a

‘the recitation of the Lord’s Prayer by the students in unison. ‘ These -

34a

the Federal Government can set up a church. Neither

can pass laws which aid one religion, aid all religions,

or prefer one religion over another. Neither can force

nor influence a person to go to or to remain away from

- church against his will or force him to profess a belief

- or disbelief in any religion. No person can be pun-

ished for entertaining or professing religious beliefs

_or disbeliefs, for church attendance or non-attendance.

every form of propagation of religion out of the realm of things which

could directly .or indirectly be made public business and thereby be

supported in whole or in part at taxpayers’ expense * * *.”

* * * * x *

“It was to create a complete and permanent separation of the spheres

of religious activity and civil authority by comprehensively forbidding

_ every form of public aid o as al Sor religion.”

+

“The wholesonte ‘neutrality of pars this Court’s cases speak

thus stems from a recognition of the teachings of history that powerful

sects or groups might bring about a fusion of governmental and re-

ligious functions or a concert or dependency of one upon the other

to the end.that official support of the State or Federal Government

would be placed behind the tenets of one or of all orthodoxies.”

7 * > -e *-@ * * es

“Applying the Establishment Clause principles to the cases at

bar we find that the States are requiring the selection and reading at.

the opening of the school day of verses from the Holy Bible and

exercises: are prescribed as part of the curricular activities of students

who, are required by law to attend school. They are held in the school -

buildings under the supervision and with the participation of teachers

employed in those schools. None of these factors, other than com-

pulsory school attendance, was present in the program upheld in

Zorach v. Clauson. The trial court in No. 142 has found that such

an opening exercise is a religious ceremony and was intended by

the State'to be so. We agree with the trial court’s finding as to. the

religious character of the exercises. Given that finding, the exercises ©

and the law requiring them are in violation of the Establishment

Clause.”

“The’conclusion follows that in both cases the laws require religious

exercises and such exercises are being conducted i in direct violation of

the rights of the appuecs and petitioners.

. x

“Further, it is no eeae to urge that the ‘religious practices here

may be ‘relatively minor encroachments on the First Amendment.

The breach of neutrality that is today a trickling stream may all too

a

©

‘al

wa

+

oP

a

‘ .

4

Fi.

os

oa

fe

t¢

a

%

i

“ee

‘

%

va}

oA

*

;

:

~

’

:

4

..

Eee RN T ICS

GEMCRRE :§.

35a

No tax in any amount, large or small, can be levied to

. Support. any religious activities or institutions, what-

“ever they may be called, or whatever form they may

adopt to teach or practice religion. Neither a state nor

the Federal Government can, openly or secretly, par-

ticipate” in the affairs of any religious organizations or |

groups and. vice versa. In the words of Jefférson, the

clause against. establishment of religion by law: was

intended to erect“‘a wall of separation between church

and State.’ Reynolds v. United States, supra at 164.”

Justice Clark wrote the opinion in Schempp. In part, it

stated:

“The test may be stated as sins: what are the

purpose and the primary effect of the enactment? If

either is the advancement or inhibition of religion then

the enactment exceeds the scope of legislative power

as circumscribed by the Constitution. That is to say

that to withstand the strictutes of the Establishment

Clause there must be a secular legislative purpose and

a primary effect that neither advances nor inhibits

~religion. Everson v. Board of Education, supra.”

_ The first quoGition was repeated in McCollum, supra,

and portions thereof were likewise repeated in McGowan

' soon become a raging torrent and, in the words of: Madison, ‘it is

proper to take alarm at the first experiment on our liberties.’ ”

Justice Douglas stated in his concurring opinien:

.. The most effective way to establish any institution ts to finance

it; and this truth is reflected in the appeals by church groups for:

public funds to finance their religious schools. Financing a church

either in its strictly religious activities or in its other activities is

equally unconstitutional, as I understand the Establishment. Clause:

Budgets for one activity may be technically separable from budgets

for others. But the institution is an igsepdtable whole, a living organ-

ism, which is strengthened in shale when it is strengthened

in any department by contributions from other than its own members.”

(Emphasis in the original. )

Probably much. of this language would have been included’ in the

| majority opinion, had a direct grant, or direct expenditure, of money

been involved.

e: | 36a.

- v. Maryland, 366 U.S. 420, and Torcaso v. Watkins, 367 U.S.

488. In Zorach v: Clauson, 343 U.S. 306, the Court upheld

_ the constitutionality of a.“released time” for religious in-

struction program (there being no expenditures.of public

. funds or use of public buildings), stating, however,

“government may not finance religious groups nor under-

take religious instruction nor blend secular and sectarian -

- education * * *.” And in Engel, supra, as stated in footnote.

14, the Court said when “the power, prestige and financial . :

support of government is placed behind a particular reli-

-- gious belief,” the Establishment Clause is violated.

_ The Chancellor read the Schempp opinion as setting forth

-a new and comprehensive test to apprehend what was con-

stitutionally permissible and impermissible under the .

Establishment Clause. We do not read the opinion in that

manner. We do not read it as establishing a completely

new test, nor one that can be applied ‘in all cases as a final

and determinative one. Schempp did not involve a direct

‘expenditure nor a, direct grant of money.’* We read the

test therein mentioned as being sufficient to decide the

issues there involved, and, as the factual situation showed

_ that the statutes could not even pass the test named, no

more was needed to be said or added thereto. In other

-- words, the statutes there involved clearly showed that

their “purpose and primary effect” was the advancement

of religious exercises. If either their “purpose” or “pri-

mary effect” were such advancement, the statutes were un-

constitutional, and, as they offended.in both aspects, that

determined the issue; so why add hypothetical tests

attempting to cover all conceptual factual situations, such

‘as where secu and sectarian exercises are fused or -

commingled, etc.?

It is.inconceivable to us that Schempp was intended sub

silentio to overrule or supersede Everson and the other

Establishment cases preceding Schempp. On the contrary,

Everson is cited in the opinion, with approval, some half ©

~ 15 Justice Douglas was the only member of the Court who: felt 3

that even though the public expenditure was minuscule, it was suffi-

cient to invalidate’the statutes involved.

°

2

Tenn 4

;

th

. tak

of things which could directly or indirectly be made public .

_* business and thereby be supported in whole or in part at |

_ taxpayer’s expense * * *”; from Justice Rutledge’s dissent

37a

dozen times. (In fact, Everson, is cited as the authority ..

for naming the test.) At one point, after quoting, ‘with

approval, from Everson; from Justice Jackson’s dissént

a the effect that the First Amendment “was* to

‘e every form of propagation of religion out of the realm

therein which decfared, “but the object was broader ‘than

_ Separating church and state in this narrow sense,, [i]t was

to’ create a complete and permanent separation of. the

spheres of religious activity and civil authority by com-

prehensively forbidding every form of public aid or support

for religion”; the Court went on to say (in Schempp) “the

same conclusion has’ been firmly maintained ever since

that time [citing McCollum, McGowan and Torcaso, all

supra].” (Emphasis added.) ,

ee

After a consideration of all of the Supreme Court deci- _

sions and our statement of their rationale, quoted above,

_ we have reached the conclusion that; insofar as the issue.

of the First Amendment is concerned ave should apply the

following standards in measuring the statutes under

consideration. :

' As it is claimed that First Amendment liberties have

been infringed upon, we must closely scrutinize and care-

fully consider the issues presented. McGowan, supra, 366

U.S. at p. 449. Bath case must be determined on its

particular facts. Murray, Etc., supra, 341 Md. at p. 398.

We must examine each of the statutes and decide whether

it. can be demonstrated that its purpose — as evidenced

either on its face, in conjunction with its legislative history,

or in its‘operative effect — is to use the State’s coercive

power to aid religion. Schempp, supra, 374 U.S. 203, and |

Justice Frankfurter’s opinion in McGowan, 366 U.S. at pp.

466, 467. “If the primary purpose [as contradistinguished

from an ‘incidental one] of the state action is-to promote

religion, that action is in violation of. the Amendment,

but if [the operative effect of] a statute furthers both

secular and religious ends, an examination of the means —

used is necessary to determine whether the state could

reasonably have attained the secular end by means which

do not further the promotion of religion.” Murray Etc.,

supra. Cf. McGowan, supra. No taxX;.in any amount, large

or small, can be levied to support any religious activities

or institutions, whatever they..may be called or whatever:

form they may adopt to teach or practice religions. Everson,

supra, 330 US., at p. 16. Although a state cannot “contri-

bute tax-raised funds to the support of an institution which

teaches the tenets and faith of any church,” it cannot

exclude individuals, because of their faith’ or lack of it, —

from receiving the ‘benefits of valid public welfare legis-

‘lation. Everson, supra, (a case wherein the Court stated

the factual situation “verged” upon the impermissible).

When the power, prestige and-financial support of govern-

- ment is placed behind a particular religious belief, the

indirect coercive pressure upon religious minorities to

conform to the prevailing officially approved religion is

plain. Engel, supra, 370 U.S., at p. 431. We are unable to

accept appellees’ contention that every religious observance,

by an institution sectarianizes the same,. but feel that the

question of *ectarianization depends upon a consideration

of the observances, themselves, and the mode, zeal, and

frequency with which they are made. These principles are

sufficient. we think, to determine our present issues, and

"we shall apply them in considering the four statutes

involved. | ; .

We have comparatively little difficulty with_such cases.

_as Bradfield v. Roberts, 175 U.S. 291, Quick Bear v. Leupp,

210 U.S. 50, and Cochran v.-Louisiana, etc., 281 U.S. 370,

all cited’ by the appellees. We shall make but a short

analysis of the same. * Justice Brennan, in his concurrence

in Schempp, supra,.said: “A scrutiny of several earlier

oa [including the cases named above] * * *

shows that such cases neither raised nor decided any con-

stitutional issues under the First Amendment.” We agree.

And we find no great difficulty in distinguishing

McGowan v. Maryland, supra, wherein the validity of the

Maryland Sunday-closing laws were upheld. There, gen-

A

XN .

&

Ee ee Oe ee a ens + Det de ae a ats DL pes

TEP a Te ©

39a |

_ eral “public welfare legislation” was upheld because its

then “present purpose .and_.effect” was “to provide a uni- e

form day of rest for all. citizens,” even though religion

might have been affected or benefited in a purely incidental

“manner. It was much the same holding, in principle, as

- Everson, supra, whereip thé Court observed that the legis-

lation “verged” upon being impermissible. As we have

stated above,. it-is a question of degree as to how far all

religions or a specific religion may be benefited by State

action without the State stepping out of its role of complete

“neutrality,” and such action losing its character as being

incidental to lawful general welfare legislation. |

APPLYING. THE STANDARDS To THe INDIVIDUAL CoLLEcEs

There is little controversy over the facts in any of the’

‘ cases;-rather the dispute is as to the legal effect of the

facts. : sae 7

The experts on.both sides are in general accord that the

following factors are significant in determining whether

‘an. educational institution is religious or sectarian: (1) the

statéd purposes of the college; (2) the college personnel,

which ificludes the governing board, the administrative

officers, the faculty, and the student body (with con-.

siderable stress being laid on the substantiality of religious

control over the governing board as a criterion of whether

a college is sectarian); (3) the college’s relationship with -

--—religious organizations and groups, which relationship in-

cludes the extent of ownership, financial assistance, the

college’s memberships and affiliations, religious purposes,

and miscellaneous aspects of the.college’s relationship with

its sponsoring ,church; (4) the: place of religion in the ~

college’s prog. which includes the extent of religious

manifestatio in the physical surroundings, the character

and extent of religious observance sponsored or encouraged

by the college, the required participation for any or all -

students, the extent to which the college sponsors or

"encourages religious activity of sects different from that

of the college’s own church and the place of religion in the

curriculum and in extra-curricular programs; (5) the re-

' inthecommunity. ie |

With these criteria and the standards we named above

in mind, we consider the schools, individually. In setting’

oe and a classroom building.

ie pres —

sult or “outcome” of the college program, such as ac-

.creditation and the nature and character of the activities

of the alumni; and (6) the work and image of the college

s

forth the facts relevant to each, we have followed, in

considerable measure, appellants’ brief with reference to

some of the schools, after carefully checking the same with

-

the evidence.

) ‘Hood College

Chapter. 88 of the Acts of the General Assembly of 1962

grants to Hood College $500,000 to help erect a “dormitory

According to the College Bulletin issued’ in 1963, Hood

is “an, independent liberal arts college for women,” and

it “is church related through its affiliation with the United _ .

- Church of Ghrist [U.C.C.], but welcomes students of all

religious faiths.” It is listed in a Tabulation of the Danforth

- Foundation of Institutions Associated -with Religious —

Bodies as “reflecting religious orientation.” It is a small_

college, limited to an- enrollment of about 650 students,

and is governed by a Board of Trustees consisting of 35 _

members. Seven of these elected by agencies of the

U.C.C.; 22 by the Board itself; and 6 by the Alumnae

Association from its membership. The President is se-

lected by the Board, and the President, after screening by

appropriate college officials, selects the administrative per-

sonnel. Faculty members are usually located by the chair- -

_ man. of the department where a vacancy occurs. They

are selected upon an analysis of their academic credentials, .

qualifications, and-earned degrees, and their “character

———

and congeniality.” There are no. sectarian requirements

for members’ of the faculty; the President thought that |

Hood had “virtually ali shades of religious affiliations.

represented [thereon] and non-religious affiliation.” In‘the

year 1963-1964, there were 7 Episcopalians,.2 of the Jewish

faith, 3 Lutherans,.6 Methodists, 1 with no affiliation indi-

dla

‘=

- cated, 13 Presbyterians, 2 listed a Prodestant: ‘but non-.

denominational, 5. Roman Catholi¢s, 3 members of the .

Society of Friends, 3 Unitarians, and 10 members of the

U.C.C., .a rather heterogeneous 7s eas a sectarian

school. .

There i is no requirement that any. ‘nendite of the officers

of administration be of any particular religious denomina-

tion, and, in fact, ‘he officers of administration do not repre-

' sent any particular church or religious body. Included

- among these are Baptists, Lutherans, Methodists, Presby-

_ terians, one Roman Catholic and one Unitarian, and 7

members of the U.C.C.

There is no requirement that the Chaplain, who super-

| vises, generally, the religious lives. of the student body

—

. be of any particular denomination, although the a

one is a member of the UCC.

The student body is primarily selected: suntinai to edu- ©

_cational records supplied by the students and by the schools —

‘from whence they come; there is absolutely no require-

ment based on race, creed, color, or sectarian affiliation in

the student body. An examination of their religious

affiliation for the year 1963-64 shows such a diversification °

that it would unduly prolong this opinion to include them

all. Among a student body of some 675 students, were in-

cluded 146 Episcopalians, 29 Jewish students, 83 Metho-2

dists, 72 Roman Catholics, 108 Presbyterigue, and 89 mem-

bers of the U.C. C. .

' The college confers -only two earned iin the A. B.

degree, which is, of course, a liberal arts degree; and the

B.S. degree in Home Economics. It has a department of

religion and philosophy; the courses taught thegein are

conducted in the same manner as the courses in other de-

partments. These courses are not. geared ‘to. aiding the

Protestant religions or any other; they are primarily his-

torical studies in religion and “there is absolutely no at-

‘tempt at indoctrination in any way.” The President was

emphatic. in stating that he believed proselytizing had no

‘place in higher education. The professors in religious — |

field are not confined to. members of the U.C.C. or ‘to

o >)

Protestants. In addition, thare i is no attempt by the U.C.C.,

_ or any’ other group, to. select texts or to offer suggestions

as to which texts should be used, and there are no courses _

in religion or philosophy, or anywhere else in the curricu-

-lum, which are designed to train for the ministry or re- _

‘ligious work. The requirements for- attendance at chapel .

' (indeed, if they may be termed-requirements from the -

evidence) do not call for~frequent services, with the

_ _ student being allowed | generous “cuts” without excuse: .On

the Wednesday evening services, of which there are ap-

‘proximately 15 per semester, clergymen of various de-

nominations come in and -talk: to the students. These

‘include Protestants, Roman Catholics, Jewish Rabbis, and.

a Humanist (the President of Hood, after listening to him,

- being unable to state: what his religious preference was). -

This same general pattern is followed for the Sunday eve-

ning services, but not to the same extent as the services on

‘Wednesday evenings. The students are encouraged ta’

‘ ‘maintain ties with the churches of their own denomination

while at the college,'and each Sunday morning they are

released for the purpose of going to such churches in the

locality.

* In the year pent shove, ‘the U.C.C. contributed -

2.2% of the college’s total operating budget; but con-

tributed nothing in the way of capital gifts, with the

exception of one gift i in the amount of $10, 000 for endowed

scholarships.

The college has a “ery loose ‘relationship” with the

- Council for Higher Education of the U.C.C., all of the

chureh-related colleges related to the U.C.C. automatically

becoming members of the Council.

During the sunimers the college permits various civic

and religious groups to utilize their campus for programs

for which modest charges are made. The school has no

control over the programs, and,.as far as the record dis-

closes, the programs are not confined to church affairs or’

to any particular denominations. |

The facilities to be housed by the- grant herein involved

. will be a new academic building and a Sa as no re-

— activities will - conducted therein.

‘The above summarization, we think, discloses that Hood,

“ although it is a church-related school, may constitutionally

receive the money mentioned in the Bill. No challenge

. under this heading is made,against the Bill’s permissi-

bility other than its alleged violation of the Establishment

Clause of the First Amendment. —

- Applying the criteria we narned above, we are unable to

’ say that the College is sectarian in a legal sense under the.

. First Amendment, or to a degree that renders the. grant

invalid thereunder. The College’s stated purposes in re-

lation: to religion ; are not of a fervent, intense, or passionate

nature, but seem to be -based largely upon its historical

background. The College was established in 1893, when

a great number of private schools. were church-oriented,

and it was then related to-the Reformed Church of the

. United States. After two church mergers, one in 1933 and

one in about 1962, ‘the present sponsoring church is the

‘ newly created U.C.C. The Church does not have control

over the governing body and certainly the college per-

sonnel shows no serious attgmpt to proselytize, or to re-

quire certain religious beliefs to become a member thereof. |

_ The financial assistance of 2.2% of the operating budget

given -by the Church is a moderate percentage. The only —

physical structure of .a religious character seems to be the

Chapel, and it is open to all. Religion in the curriculum

"and in extra-curricular programs is at a minimum’ for

any church-related school. We do not find that religion

occupies a ‘dominant place in the College’s program, the rec-

ord clearly showing that students are not required to

attend and- participate in many religious observances. It

is, of course, accredited. The record does not disclose’ any

great activity among the alumnae of a religious nature,

and, although the image of Hood in the community is that

of a good, sound, and efficient College, there is no showing .

that it is considered..to. be religiously slanted. Under the

' above circumstances, it is obvious that neither the U.C.C.

nor any other religion is running the institution, or has

control over it.

We hold, therefore, that the primary purpose of the

grant here involved was not to aid or support religion;

=

&

oa .

that there is nothing on the face of the Bill or its legisla- |

tive history ‘to demonstrate that its purpose was to use >

the State’s coercive power ‘to aid religion; and that its

. operative effect is not to aid religion (as we read the

record, we-see no aid-to religion here;. if there be any it.

assuredly is incidental and very remote in nature), but ©

to promote the educational facilities for women. Conse-

quently, the Bill does not violate the First Amendment.

My Sur. Western Maryland

‘ Chapter 546 of the Acts of the General Assembly of 1963

grants $500,000 to Western Maryland College for the pur-

pose 6f aiding in the construction of a science’ wing and

dining hall.

The stated purposes include religious objectives to a

considerable extent. The college characterizes itself as a

“religiously oriented institution” and ‘“make[s] no bones

about the fact that our philosophy at Western Maryland is .

yea Christian philosophy.”

One more than one-third of the members of the govern- |

ing board are, required by its Charter to bé Methodist

_-’ Ministers, so as to give the clergy the veto‘power over any

_ change inimical to the: interests of the church. The re-

quired percentage “binds the college very closely to the

Church.” The board is heavily Methodist, and nearly all

Protestant, although quite a number of denominations are .

represented thereon. All the presidents have been Metho-

dist Ministers. The administration is almost entirely

Protestant, although, again, _— a number of denomina-

. tions are represented.

Care is taken to obtain a faculty sail to the

Christian philosophy of life, and an atheist would not be

employed. Almost half of the faculty is Methodist, and

almost all Protestant. Approximately:40% of the student

body is Methodist, .and almost all Protestant. The large.

number of Methodists is due to. gteater likelihood of ac-

ceptance of Methodist “borderline cases * * * because they

. 4a

. & Ss ;

seem sani of the constitutency of the college,” and to the

large number of Methodist stutdents who become familiar

_ with the college during church conferences on the campus.

The college has a significant number of Methodist pre-

“ministerial students. Some of these are given scholarships

ranging from % to full tuition. And the children of sacieeed

_ dist Ministets are charged ‘only half tuition. j :

The church. provides “financial support of considerable

value,” both operational and-capital, the operational. con-

tribution being between 2 and 3% of the budget. The

college is affiliated with, and supports, denominational edu-

cational associations. —

The college campus is very ioniie used. by Piotestint

religious groups (some at actual cost), and “logically and

naturally, there have been of course more of the Methodist

“i program here than any of the other, denominations.”

The college fosters a religious program, under the di-

rection of a Methodist Minister. Participation in Protestant

religious services is required of all students. The require- .

ment is publicized so that if anyone has conscientious

- scruples about attending such services “he should know -

| _ that before he comes.”

The college makes a conscious effort to integrate re

ligion, and specifically Christianity, with the curriculum

and extracurricular life. Because pepe, oe not have

the wide range of.dogma that one, or more gions have,

. there is less specific religious restriction in regard: to cur-

riculum, but the school endeavors to provide a religious

motivation.

We quote briefly from material contained in documents .

issued by the College: “Many [of the students] become

seriously interested -in religion for the first time [while

attending the college].” ee

Under the heading “What Has the College Done For.

The Church,” after listing what we have named above,

we find the following: sro

.

oe

°

>

» 5 *

e)

cs

Se ee ee

“

ee ee + re

46a ~

“The principal contribution the College is making

to the Churcli is in accordance with its [the college’s]

basic purpose: to provide the best in higher education

' within the framework and.atmosphere of the verities

ane values of our Christian faith.” a added. )

The ‘college is accredited by the Middle States Associa-

tion of Schools and Colleges and the University Senate of |

the Methodist Church. It is proud of the number of its

alumni who enter the Christian, and particularly the

Methodist ministry. The image of the college in the com-

‘munity is strongly Methodist. ; dl

' Applying the criteria and principles of ine we sehen

above to this College, we we reach the conclusion that’ it is

sectarian in a legal sense under the First Amendment,

and may not constitutionally receive the grant named in

the Bill. Whether or not an egucational institution is

sectarian in such a legal sense is a rather elusive matter,

being somewhat ephemeral in nature. Hence, we have de- -

‘liberately made no attempt to enunciate a hard, fast, and

intractable rule in regard thereto, preferring, as indicated

above, to decide each ‘case upon the totality « its at-

tendant circumstances. ;

Here, the stated purposes of the College have a distinetly

religious “flavor,” and they clearly indgéate a considered | by

resolution to. promote religious activities and exercises.

The Board of Trustees consists of 27 Methodists in a mem-

bership of 40, with virtually all of the remainder Weing.

Protestants. And, of course, at least one more than one-

third must be Methodist Ministers, which “binds she col-

lege very closely to the Church.” The administrative

officers are almost entirely Protestant; and the full-time

faculty consists. of 30 Methodists in a membership of 51.

We shall not repeat all of vyhat we said above concern-

be ing the College’s activities. We find nothing on the face

of the bill or its legislative history to demonstrate a pur-

pose to use the State’s coercive power to aid religion, but

a careful consideration of all the facts impels us to the |

conclusion that the operative effect .will be such, if the

‘Ala

‘grant be effectuated. As stated in footnote 14, “The most

effective way to establish any institution: is to finance ite

oe Financing a church either in its strictly religious

activties or in its other activities is equally unconstitu-

tional * * *.” When it is conceded that all the Presidents

have been Methodist ministers, that many of the Students

become serio interested in religion for the first time,

that limited scholarships are given to the children of the -

ministers of one denomination, that scholarships are

awarded to pre-ministerial students of one denomination,

_ that its campus is made available, at cost, to organizations

belonging | to one faith, that preference i is given to “border-

line cases” of one denomination in student-body selection,

and that.the “basic purpose” of the College is to provide

the’ best in higher education “within the framework and

atmosphere of the verities and values of our (emphasis

ours) Christian faith,” et cetera, how can it seriously be

argued: that a grant of tax-raised funds to such an insti-

tution would not be “to support * * * religious activities

or institutions, whatever they may be called. or whatever

form they may adopt to teach or practice religion”? ;

. Moreover, the College has made no attempt (possibly

due to the fact that the opinion had not been filed when

«the testimony herein was taken) to comply with the re-

' an examination of the means used i

quirement set forth by this Court in Murray, Etc., supra,

i.e., “if-a statute furthers both secular and religious ends,

to determine

whether the State could reasona ae have attained the .

secular end by means which do not further the promotion .

of religion.” The appellants suggest that the State could

have accomplished the secular purpose ired, without

the question of religious activities becoming involved, by

making the same grant to any one of several non-sectarian |

educational institutions in the State. . —

Without laboring the question further, we hold that

Chapter 546 transgresses the proscripti of the Estab-

lishment Clause, consequently, it is unconstitutional and

invalid. ;

48a

Notre Dame

- Chapter 66 of the Acts of the General Assembly of 1962

grants $750,000 to this College to aid in the construction of

a science building. -

"Notre Dame’s stated purposes are > deeply and intensely

religious. The theory of Catholic education is that Prayer,

Holy Mass and the Sacraments represent “the Unifying

forces,” and “the instructional program interlocks with

- the non-instructional program; objectives with methods.

and means, and all to an essential, interwoven unity.”

“All of [the College’s] objectives are implemented in some

degree in every department.” The institution’s “whole -

life is lived in the Catholic atmosphere, which assumes that

earthly life is to be lived * * * in terms of a hrepahitiod

for the future life with God,” and to that end, it “har-

monizes” its entire “program with the philosophy and ©

theology of the Catholic Church.” The entire program of .

. the College is so ordered “that [the student’s] life and study’

and the atmosphere of the college are permeated, .moti- -

vated, enlarged and: integrated by the Catholic way of life

as developed and expressed in the daily prayer, liturgy,

Sacraments and Holy Mass of the Church.” (Emphasis

ours.) “And Outward Grace * * *. Since the Christ-

thought, the Christ-word and the Christ-deed are the norms

+ off community living in a Cagholic college for women, in-

timations of* this preSence should be found éverywhere:

In “he Chapel — [and] in the Class Room * * *.” “This

expresses our aim to have the spiritual support and vivify.

the whole college atmosphere.” Extracts taken from Ex-

hibits in evidence. “God bless you and your apostolate in

the home, classroom, lahoratory, business office, etc. Grate-

fully in Our Lady.” (Sentence from a letter of Sister ©

Miriam to the Girls of 1961.) “Make your payment.a

Christmas Gift this year. Help meet the $750,000 Matching

Grant for the Science Buiiding [the building involved in

the grant under Chapter 66]. * * *. And you know that

your gift to the College is a gift to God for the furtherance

of his work. May the Christ Child bless you for your gen-

$ 444

eromiy °-* °.” (Letter from Sister Miriam dated Decem-

ber, 1962).

__ If erected, each class. in the new science building will _

open with a prayer.

The governing board is controlled by a Catholic religious

order whose members are completely ‘committed to Cath-

olic discipline and educational philosophy. The adminis-

tration is almost entirely religious. The faculty are pre-

dominantly nuns who are appointed by the Provincial .

_ Superior of the religious order (who is Chairman of the

- governing board), in consultation with the President, who

is also a member of the order. Administration and faculty .

are chosen on the basis of commitment to the college ob-

~ ~jectives and ideals, and are overwhelmingly Catholic. Ten

i? per cent of the studemts are candidates for a religious order

and more than 97% of the whole student body are Catholic.

‘This pergentage cannot be deemed coincidental. ie

The college i is owned and has been. given heavy financial

assistance by the religious order. It is officially a member

_ of, and supports, a number of distinctly Catholic associa-

_ tions and institutions. It makes its campus available for

’ use by the Catholic Church and related groups, but not

to non-Catholic organizations. It has close’ ties with the

Archdiocese of Baltimore.

Catholicity permeates the college program: the physical i9

surroundings; the rich variety of college-sponsored, exclu- .

sively Catholic observances, many of which are compul-

sory for Catholic students, if not ‘for the entire student

body; the curriculum; extracurricular activities; and the

student advisory and counseling program. |

The college and the accrediting agencies report. a high

level of success in achieving the religious objectives of the

‘ institution. The alumnae, individually and as an organiza-

tion constituting “an integral part” ‘6f the college activity,

are deeply engaged in the promotion and defense of Cathol-

icism and the Catholic Church.

?

50a

The college provides supplemental programis of strong

Catholic religious content for nuns teachihg in parochial

schools and ‘in its Adult Institutes for the community at

large. Its image i the community, as expressed in its

publications, constituencies, relations with the Archdiocese,

ceremonies, and way of life in general, is distinctly and

intensely Catholic.

As the situation presented by the facts relating to St.

Joseph College are so analogous to those regarding. Notre

Dame, we set forth St. Joseph’s fact picture before stating

our holdings with reference to Notre Dame. ?

St. J oseph College

Chapté? 545 of the Acts of the General Assembly of 1963

grants to St. Joseph College $750,000 to assist in erecting a

science building,

‘Since the evidence relating to this institution isso sim-

ilar to that regarding Notre Dame, we curtail, somewhat,

‘our analysis thereof.

The stated purposes of St. Joseph College seem to be

even more strongly religious than Notre Dame’s. The re-

ligious order of dedicated nuns has. complete control of the .- -

government and administration. The nuns have’ taken

~ and abide by vows of strict obedience: The faculty is

chosen with a view to achieving the religious ideals of the

college, both by precept and example, and preference is

given to Catholics; ‘it,.as a whole, is sympathetic to the

Catholic philosophy of education: ‘The majority of the |

faculty are Catholic priests or nuns, and’ there are but a —

small number of non-Catholic members, The student body

includes candidates for the religious ofder, and has cor.-

sistently been virtually 100% Catholic; approximately 90%

_of the students are graduates of Catholic parochial high

schools. The Catholic character of ,the student body is

achieved by design.

The religious order owns the college nem’ the cor-

porate form and has provided virtually 100% of the finan-

cia] assistance needed over and above operating income.

5la

The college is affiliated ‘ite, and supports, distinctly

Catholic associations and institutions, and, like Notre Dame,

is a certified affiliate of the Catholic University of America. -

The supplementary uses of the campus have been exclu-

sively by Catholic religious groups.’

The physical surroundings are strongly religious. Re-

ligious observance is strongly Catholic, richly textured,

and extensively participated in: “In general, the Theocen-

tric orientation of a Christian student’s life is encourage

. The: accrediting ~ agencies have specifically found St.

Joseph to be accomplishing its religious objectives. The

alumnae, individually and as an organization, are distin-

guished by the number of members of religious orders, the

high percentage of active Catholic workers, and the devo-

tion to‘the alumnae association’s objectives: “to promulgate

the principles and ideals of Catholicism * * * defending

and promoting the interest of the Church, in promulgating

Catholic education and in supporting the auch and its

, activities.”

The supplementary instructional programs are strongly’ *

Catholic, as is the image of the college in the community.

. erected, the new science building will house crucifixes, an

‘ “maybe” statues, and “very-likely” waterfonts.

‘sAgain, we find nothing on the faces of the above two |

Bills or in their legislative ‘histories to demonstrate a

purpose to use the State’s coercive power to aid religion,

but a consideration of the totality of attendant circum-

‘stances impels a conclusion that their operative effect (if

the grants be effectuated) demonstrates such a purpose.

It must be remembered that here involved are direct

grants of tax-raised funds to the educational institutions,

themselves, which will become ‘the sole owners of the

buildings if erected. If appellees’ contention that there

is nothing in the Establishment Clause which proscribes

direct grants to aid and support sectarian educational in- ©

stitutions were correct, it seems that Everson, supra, would

have been decided quite easily and without dissent, even

though no direct grant was there involved. The funds here

52a

involved are entirely different from those in such cases as

Board of Education v. Wheat, 174 Md. 314, and Everson,

supra. In Everson, the Supreme Court ruled that a State

could constitutionally finance bus transportation of chil-

- dren to parochial as well as public schools, on the ‘ground

that involved was “public welfare legislation” (protecting -

_all children from traffie-hazards and dangers), and under

the provisions of the €irst Amendment no State could -—

exclude individuals, because of their faith, from receiving ©

. the benefits of such legislation. In Wheat, this Court ruled

constitutional a statute which required the Board of Educa-—

tion (under limitations as te distance, ete.) to carry

parochial students to and from 1 their schools upon the same

conditions that public-school students were carried, on the _

ground that the statute protected the safety of the children _

while en route to and from schools. No direct grants of

money ‘or property ‘to any educational institution were in-

volved in either case, but the Supreme .Court split 5 to 4

and this Court 5 to 3 on the issues, with vigorous dissents

béing filed in each case.

In basing its holding ‘i in ipeereon on public vere legis-

lation, the Supreme Court was careful to say:

“New Jersey cannot consistently with the ‘establish-

ment of. religion’ clause of the First Amendment

contribute tax-raised-funds to the support of an insti-

- tution [directly involved: therein were students in

parochial educational schools -— no church, or institu-

tion set aside especially for religious worship, was

involved] which teaches the tenets and faith of any

church.”

And “no tax in any amount, large or small, can be

levied to support any religious activities or institu-

tions, whatever they may be called, or whatever form

“they may adopt to preach or practice religion.”

We do not deem it desirable to add materially to what.

we have already said with reference to Western Maryland.

.. The facts relating to Notre Dame and St. Joseph speak for

themselves. We thirik they clearly show that the operative

Ste’

‘. effect of the Bills (if the grants are permitted to be made)

demonstrates, in a legal and constitutional sense, a purpose -

to use the State’s coercive power to aid religion; that the

grants, if made, would constitute a contribution by. the

State of tax-raised funds to support institutions which

~ teach the tenets and faith of a particular church; and that

_ the taxes levied to the funds for the grants would be

levied to help support religious activities: and religious

» institutions. aia

> We agree with Neil J. McCluskey, S.J., in his work

Catholic Viewpoint on Education, p. 168, wherein he stated:

“The Catholic laity and ctergy are fully aware that direct

basic support by the government to parochial schools is

out of the question” because “the U.S. Supreme Court

. would interpret such action as_a contravention of the

Federal. Constitution.” > e | oN,

We, therefore, hold that both Notre Dame and St.

Joseph are sectarian in a legal sense undef the First

Amendment, and neither can constitutionally receive the

grant made to-it; hence Chapter 66 of the Acts of 1962-

and Chapter 545 of the Acts of 1963 are unconstitutional

and invalid. * oe 4275) aa

£

THE MaryYLAND CONSTITUTIONAL CLAIMS.

Under some circumstances, it would. be unnecessary to

consider these contentions after our holdings above, but,

should we find that the grants violated the Maryland

Constitution, the Supreme Court might assume.a different”

attitude with reference to reviewing our conclusions than” -

if we decide to the contrary; so we deem it desirable ‘to

answer. the same. . ) os

Article 23 of our Declaration of Rights “provides, inter -

_ alia, that no man should be deprived of his life, liberty, or -

property except “by the judgment of his peers, or by the

Law of the land.” Appellants point this out and call

attention to the fact that we have held the phrase “Law

of the land” herein is the equivalent of “due process of

law” as used in the Fourteenth Amendment to the Federal

“-

fe

8

Constitution. They then argue, “for the same reasons,

and on the same authorities, as the grants violate the Fvuur-

_ teenth Amendment’s guarantees of due process of law,

. “which have been construed to include the prohibition

against an establishment of religion contained in the First —

Amendment (emphasis ours), the grants violate Art. 22

*=**)»

It is quite true that we have equated the phrases “Law.

of the land” and “due process of law.” See for example

Matter of ‘Easton, 214 Md. 176. But the argument loses

sight of the fact that the First Amendment is not included

in the Maryland Constitution, and we do not have a Co

of higher authority than the Court of Appeals to construe

our Constitution, which, of course, is not the cose when

the. Federal Constitution is involved. We have found no

Maryland case denying the right of the Legislature to

make a grant to a private institution provided the money =

is appropriated and expended for a public use. Cf. Johns ~

Hopkins Univ. v. Williams, 199 Md. 382; Saint John’s Col-

lege v. Maryland, 15 Md. 330; St. Mary’s Industrial School

v. Brown, 45-Md. 310; Board of Education v. Wheat, supra;

Adams v. St. Mary’s County, 180 Md. 550. The grants here

under consideration (if effectuated) are clearly ones to

ba, expended for pyblic uses: to assist in educating our

* citizens. Cf. Johns Hopkins Univ. v. Williams, supra. We,

therefore, hold that none of the statutes involved violates

Article 23. ' : z

What we have just said answers appellants’ contentions

in regard to Article 15. ‘It is true that under this Article

the Legislature is inhibited from imposing taxes other

than for public purposes. “Baltimore & E.S.R.R.'Co. v.

Spring, 80 Md. 510. It is also true that it has been said

that. what is public purpose for which tax funds may be

expended is not a matter of exact definition; it is almost

entirely a matter of general acceptation, Finan v. M. & °

C. C. of Cumberland, 154 Md. 563. But at least since the

Johns Hopkins Univ. case, supra, it cannot be doubted that

gifts to private educational institutions to aid in the con-

struction of school buildings are expenditures for public

ae

* 55a

purposes. In the above case it was not even argued that |

the gift was not an expenditure for a public purpose. ,

We hold that none of the Acts violates Article 15.

This brings us to a consideration of the final contention

to be answered: do the grants Violate Article 36, which, in

. part, provides: “nor ought any: person to be compelled to

frequen® or maintain, or contribute, unless on contract,

to maintain, any place of worship, or any ministry.”

Appellanf# call attention. to the similarity of the language

just quoted to that in Jefferson’s famous BiJl passed in

Virginia, supra (see it also as Document 10, Am. Jur. 2d,

Desk Book), cite several out-of-state cases that are rather

closely in point, and claim the grants herein violated

Article 36. In the light ‘of the history and reasons for the

separation-of-church-and-State provisions and the broad —

scope given the First Amendment by the Supreme Court

cases beginning with Everson, supra, it cannot be said that

the contention is entirely lacking in force, and if it were

presented to us as an-entirely new ‘proposition, it might

raise some doubt as to how it should be answered: Al-

though there does not seem to be any previous decision

. of this Court directly in point; we think an examination

of how, why, and when the provision first came into our .

_ Constitution, the changes therein subsequently made, and

the decisions of this Court bearing in some degree on the

meaning of the provision compel a conclusion that Acts -

herein involved do not violate Article 36.

» Our first Constitution was adopted in 1776, 10 years

_ before Jefferson’s Bill referred to above and 11 years be-

fore the adoption of. the Federal Constitution. This first

Constitution granted religious tolerance to all those of the’ 9.

Christian faith; and, with reference to compelling support *°

therefor had substantially the same provision as our ¢ur-

rent.one, Prior to 1776, it had been the practice in Mary-

land to levy taxes for thesupport of the Christian religion

and also to support the clergy of the Church of England.

Article XXXIII of our first Declaration of Rights (the

precursor of the present Article XXXVI); after granting

oe

56a

tolerance to those who professed the Christian religion, as ’

we pointed out above, provided that no person ‘ought. to

be compelled to frequent, maintain, or contribute to main-

tain any particular place of worship or any particular

ministry. Immediately: following, it stated that the Legis-

lature could lay. a “general and equal tax for the support —

of the Christian religion,”. with the right in the individual

_ taxpayer of “appointing over” the money paid by himf“to

_the support of any particular place of worship or minister

* * *” Tt further provided that the Acts, lately passed, for

collecting monies for building or repairing particular -

churches or chapels should continue in force, .and that

every encumbent of the Church of England should be

entitled to receive “the provision: and support established |

by the act, entitled, ‘an act for the support of the clergy

of the church of England, in this Province.’ ”

‘Notwithstanding the passage of Jefferson’s Bill establish-

ing religious freedom and: preventing taxation to support :

any “religious worship, place or ministry” in Virginia in

1786 and the adoption of the First Amendment in 1791

(which at that time did not apply to the states), it was not

until 1810"* that the people of Maryland saw fit to take

_ away the authority of the Legislature to. tax to support:

churches or ministers by amendment of the Constitution.

- This amendment provided “that it shall not be lawful for

the general assembly’ * * * to lay an equal and general

tax, or any other tax * * * for the support of any religion.” .

‘(Emphasis added.): The Constitution of 1851 granted

tolerance and religious liberty to “all persons,” and changed

the provision under consideration from “any particular

place of worship, or any particular ministry” to “any place

of worship or any ministry,” as as itis today. :

We have’ given this ‘brief background of Articlé 36 to

show that Maryland was obviously in no great hurry to

*16 Four of appellees stated: “It was not until thé Constitution of

1851 that the authority of the Legislature to tax for the support of

the Christian’ religion was eliminated.” ‘This apparently is in error.

See Niles, Maryland Constitutional Law, p. 379; 1 Poore, Charters

_& Constitutions = (1878), 832. -*

™= P <

.

. prevent taxation to support certain religions or to grant

religious tolerance to all persons, no matter what ‘might _

be their faith orglack of faith. We indicated above that

there ’re several decisions of this Court that have some |

bearing upon the issue now under consideration... We shall

name some of them. Wheat, supra, involved free trans-..

portation of children to. parochial schools on publie-sehool

buses. The Act was challenged as being one devied —

taxes for a private purpose, and as being violative of.’

Article 36. After ‘finding that the Act was sustainable

under the police power as: provi for the safety of

’ children 4nd aiding in enforcing the4gw requiring children

of. certain ages to: attend school, furt stated,‘ “this

conclusion * * * renders it - consider’ —

rately the objection that a religious institution is de

ad

i * * F. Rgds por gig apa opr peed aby ed

only incidently, the aid only a by-product of

_ lative.action.” This, by implication, was74 ig indica-

tion that the Court did not consider; the Act’ to| violate

Article 36, for the Legislature, even in the joan

State’s lice power, cannot transgress specific constitu-

tional inhibitions; hence, had the Act violated Article 36, —

it would. not have been eonstitutional legislation.

Then there are the cases of St. John’s Gollege v. ‘State,

‘ 15 Md. 330; ‘St. John's College v. Purnell, 23 Md. 629; .»

. Alfegany County School v. Maffit, 22 Md. 121; St. Mary’s

Industrial School for Boys v. Brown, 45 Md> 310, 335, 336;

Clark v. ,Maryland Institute, 87 Md. 643; Balbimore .v.

Keeley Institute, 81 Md. 106; Finan y. M. &C.C. of Cum-

berland, 154 Md. 563, and possibly others. We shall not

analyze the holdings in each of these, for we think Judge

Parke, for the dissenting members in Wheat, supra, cor-

rectly summarized them. He'stated: -

“Thus appropriations by the General Assembly of

.. public funds‘are customarily made and paid to various

bodies and institutions throughout the. state, which

‘are privately owned and managed, and which are, in

- many instances, of sectarian origin and character.:

It will he found, upon examination, that this employ-

Rae Be : vor PS a

_

” 58a

ment of ans funds has not been for a private pur-

pose but for a public one. It is upon this ground that

this employment of public anoneys has been sanc-

' tioned by the decisions of this.court. If an incidental

or direct benefit result to the recipient, this resultant

advantage becomes immiaterial- and negligible because

of the paramount publie’ and essential nature of the ©

service rendered and of the further factor that the

State has either ndt undertaken or not fully assumed

the performance of the public service or function in-

volved. [citation]. The validity of such grants, when

so limited, is not affected by any sectarian circum-

stances. [citation]. Thus, grants to educational insti-

tutions which supply instruction and training in learn-

ing-and mechanical, industrial, agricultural and other

_ arts of which the State does not offer or undertake to

afford universal service [there is no contention that

Maryland has ever adopted universal“public instruc-

, tion at the college level] are ‘freely made without

reference to whether the recipient be denominational

. or otherwise. [citation of Maryland cases and legislative

grants). Similarly, the grants in aid of the hospitakza-

tion of patients for care and treatment in sickness,

injury and ‘disease, [citation] for chronic alcoholism,

. lcitation] for homés for the aged and infirm, for

orphans, for children, for the blipd, for crippled chil-

¢dren,:for reformatories and for other purposes which

are within the functions of the State as conducive to

the welfare of its inhabitants? and pursuaft to the

mandate of the Declaration of Rights:, “That the

Legislature ought to encourage the diffusion of know]l-

edge and virtue, the extension of a judicious system.

of general éducation, the promotion of literature, the

\arts, sciences, agriculture, commerce and manufac-

tutes, and, the general oer maaalee of the condition

- of the people.’ Article 43.

“In these grants the State advisediy makes no‘ dis.

tinction between denominational and non-denomina-

tional institutions, nor has it limited its appropriations

to race or color. The grants so made for special public

Ps

s

59a

an purposes find at once their justification and vindica-

tion in the promotion of the general welfare in those

matters of public concern’ in respect of which the

government had not theretofore undertaken com-

pletely to perform. In short although paid to a pri-

_ vate person, the money is appropriated and expended

fora public use.” (Emphasis supplied. )

Y

lso see some relafionship to | our present issue in

the holdings in Baltzell v. Church Home, 110 Md. 244 (up-

holding. a bequest to the Church Home & Infirmary of

Baltimore City, at a time when the Constitution required

legislative sanction for gifts, with certain exceptions, to

any “religious sect, order or denomination.”) and Mt. St.

Mary’s College v. Williams, 132 Md. 184, wherein the Col-

lege was held not to ny wh within the purview of being a

religious sect, order or den tion. Both of these casés

followed the lead of Speer v. Colbert, 24 App. Cas. (D.C.)

187, aff’d 200 U.S. 130, wherein Georgetown College, which

_was an educational institution under the control of a

religious order, known as the Order of Jesus, was held

‘ not to be a sectarian institution or a religious sect, order

or denomination. This last case has especial significance,

for the law in the District of Columbia was then the same

as in Maryland, and the opinion’ was one of the last of

its then Chief Justice Alvey, who had formerly been a

most distinguished Chief Judge of this Court and was

thorou familiar with Maryland law.”

-Thus it is seen that grants to educational institutions at

a level where the state has not attempted to provide uni-

versal educational facilities for its citizens have never, in

Maryland, been held to be impermissible under ‘Article 36;

f

even though the — may be under the control of .°

ace And“we see no reason to hold other-

wise now. th

__ violates Article 36.

17 And, incidentally, he was also a memiber of the Constitutional

Convention which adopted the Constitution of 1

erefore, hold that none of the grants.

tog

60a

This conclusion is bolstered by the fact that alk of the

states, except Maryland and Vermont, have explicit pro-

_ visions prohibiting the appropriation of public money to

schools controlled by religious .organizations, See Note

50 Yale L.J. 917 for 46 of them, and we are informed that

- the Constitutions of Alaska and Hawaii have explicit pro-

visions also. Had the people of Marylahd desired to change

its practice relative to such grants, it certainly would be

likely that they would have made similar provisions after

so many states had done so.

Also, the Department of Health, Education and Welfare

Misc. Doc. No. 28, The State and Non-Public’ Schools, pp.

16-17 filed as’Plaintiffs’ Ex. 113, cites Maryland as having

no specific provisions against grants to religious schools.

Decree Affirmed In Part, and Re

versed In Part; and Cause Re-

manded For The Entry Of A’

Decree In Accordance With This

Opinion. .The Costs To Be Paid

Y by the Appellants, % by West-

ern Maryland College, %4 by St.

Joseph College, and % by Notre

~ Dame College.

‘

DISSENTING OPINION OF COURT OF APPEALS

OF MARYLAND

Hammond, J., dissenting (Horney and Marbury, concur) :

I agree with my brethren of the majority that the indi-

vidual appellants have standing and that the capital grants

under revigw do not offend or violate Art. 15, Art. 23 or

Art. 36 of the Maryland Declaration of Rights. I cannot

‘agree with their conclusions that the grants by the State

of Maryland to Western Maryland College fér buildings

to be used as a science wing and a dining hall and to St.

Joseph College and the College of Notre Dame of Mary-

land for science buildings, amount to the establishment of

religion by the State contrary to the maridate of the first

6la ss

amendment to the Constitution of the United States, made

binding on the states, under the decisions of the Supreme

Court, by the fourteenth amendment.

There can be no rational doubt from the evidence in the

record and facts that properly can be judicially noted,

of the following: 2 3

(1) that the State of Maryland has for over a hundred

and eighty years followed a general, systematic and non-

discriminatory pattern of financial assistance to private

institutions furnishing a higher secular education. In 1784

the Legislature granted an annual sum of 1250 pounds for

the use of St. Johns College (Ch. 37). By Ch. 107 of the

Laws of 1798 there was authorized an annual grant to

Charlotte,Hall School (which had been founded by the

established church before the Revolution). In Johns

Hopkins Univ. v. Williams, 199 Md. 382, 399-400, Chief .~

Judge Marbury, for the Court, listed capital grants by the

State to institutions of higher learning in Maryland from

1904 to 1937.'

1Thus, in 1904, nearly fifty years ago, a public building loan in

the amount of $1,625,000 was authorized by Chapter 228 of the Acts

of that year. Of that amount $57,000 was for the purpose of con-

struction and completion of buildings for the Maryland Agricultural

College, which was the collegiate predecessor of the University of ,

Maryland at College Park. At that time, the Maryland Agricultural

College was a semi-public institution, having both public and private

stockholders, and one-half of its property was owned by the State,

so that the appropriation to it js not, perhaps, a perfect legislative

interpretation. However, in the same act, $5,000 was given for -the

construction of buildings at Charlotte Hall School, a privately owned

institution, $5,000 for construction of St. Mary’s Academy, a similar

institution, and $175,000 for the purchase of a lot of ground in

Baltimore for the Maryland Institute, also a private institution, and

for the construction of a building thereon. This was followed in

1912 by Chapter 90 of that year, which provided for the issuance

of $600,000 worth of the State’s bonds, the proceeds of which were

_ to be paid to the Johns Hopkins University for the erection of a

technological school. That act also included an annual appropriation

for maintenance, and provided for scholarships, and if might possibly

be argued that the scholarships constituted a consideration.’ However,

in 1922 by Chapter 464, a general construction loan of $1,750,000

provided for a gift from the proceeds of $20,000 to St. John’s College

i i itl

7

62a

(2) that under both*Maryland law and federal constitu-

tional standards such grants are for a public use and pur-

pose. The Maryland Declaration of Rights provides in the -

opening sentence of Art. 43: 4

“That the Legislature ought to encourage the dif-

fusion of knowledge and virtue, the extension of a

judicious system of general education, the promotion

of literature, the arts, sciences, agriculture, commerce

' and manufactures, and the general melioration of the

condition of the a: = ;

In his dissent in Senet of Education v. Wheat, 174 Md.

314, 335-37, Judge Parke well summarized practice and law

in a discussion, as to the correctness of which, there can

be no real disagre¢ment. He said:

“Neither the payment of money by the State to a

private person, whether corporate or otherwise, nor

the nature and occupation of that person, is determina-

for a new heating pRint, and $30,000 to Washington College for and

on account of its indebtedness... In. 1924, there were four acts passed.

Chapter 274 authorized a St. John’s College loan in the amount of

$110,000, the proceeds -of which were to pay the present indebtedness

of the college. Chapter 280 created a state debt of $2,460,000, and

of the proceeds $100,000 was’given to St. John’s College for equip-

ment and necessary construction purposes. By Chapter 366, the

Western Maryland College loan of $125,000 was created, to be turned

over to the Board: of Trustees of Western Maryland College for the

construction and equipment of a science building. By Chapter 369,

a state debt of $100,000 was authorized, proceeds to be given to the

Board of Visitors and Governors of Washington College for equip-

ment and construction. In 1927, by Chapter 666, the Morgan College.

Joan of $125,000 was created, the proceeds to be used for the con-

struction and équipmentt of*an industrial science building at Morgan

College, then a private institution, but later acquired by the State.

In 1937,,by Chapter 487, a general: bond issue of $9,052,000 was

authorized, of which $162,000 went for the construction of buildings

at. Bowie Normal School, and $25,000 for the constfuction of an

improved water supply at the Maryland Training School for Boys.

In 1929, by Chapter 263, a state debt of $50,000 was created, to be

used for the payment of the. deficit in constructing and equipping

the new buildings at Charlotte Hall School. All of these recipients

were ‘Private non-profit corporations.” ee

* 63a

tive of the purpose of the payment. Thus appropria-

tions by the General Assembly of p

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.

Petition for Writ of Certiorari — Board of Public Works of Maryland v. HORACE MANN LEAGUE OF THE UNITED STATES OF AMERICA, INC. · 385 U.S. 97 | Frix