# Petition for Writ of Certiorari — Board of Public Works of Maryland v. HORACE MANN LEAGUE OF THE UNITED STATES OF AMERICA, INC. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0840%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1966 - **Citation:** 385 U.S. 97 ## Text : Bape * MA ¥f ME COURT. u, cy ee .... 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). ¢ 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0840%3A1. Public record. Not legal advice.