Appendix — Worrell v. Matters

APPENDIX

OPINION’ ©F THE COURT |

Musmanno, 7 | _ |. FILED: January 17, 1967

The Act of June 15, 1965,’ amending Article III, Section

1361 of the Public School Code of 1949,? provides, inter alia:

“When provision is made by a board of school di-

rectors for the transportation of resident pupils to

and from the public schools, the board of school

directors shall also make provision for the free

transportation of pupils who regularly attend non-

public elementary and high schools not operated

for profit.” .

On August 30, 1965, Snel G. Rhoades and five -

others filed a suit in equity in Montgomery County, averring

that the Act of June 15, 1965, known ag Act No, 91, was

unconstitutional, unlawful and invalid, and asking that the

Court enjoin the defendant School District of Abington

Township from entering | into any contract under the indi-

cated legislation. :

- On September 1, 1965, Betty J. Worrell filed a Gulia

suit in Delaware County against the School Directors and

_ Officers of Rose Tree Union School District. The Attorney

_ General of the Commonwealth petitioned this Court to take

original jurisdiction in the two equity actions and we issued —

certiorari to bring the actions before us for disposition. The

Attorney General intervened in both actions, so did other

parties, all of whom filed answers and bviefs, All counsel |

1—Act No. 91, P-L. ....... 24 PS. §13-1361.

2—Act of March 10, 1949, P.L. 30, 24 P.S. §13-1361.

| ae MET GR NRE S TEMS EARTET RET IT REN

Opinion — Supreme Court of Pa.

participating in the argument, both orally and by printed

brief, have presented their positions ably and vigorously.

The issue is one on which adversaries feel deeply, al- -

though in reality the opposing points of view do not bristle

with as much contention as might at first appearance seem

likely. The plaintiffs’ and those who support their position

see in Act 91 an infringement on the First Amendment to.the

_. Federal Constitution and to:Article I, Sec. 3; Article III, Sec-

‘ tions 17 and 18; and Article X, Sections g} and 2 of the

Perinsylyania Constitution.

The purpose of Act 91, as announced in its title, is to -

provide for the “health, wealth and safety of the children of —

the Commonwealth.” The phrase “health, wealth and safe-

ty” is not to be treated lightly or as a superfluity. “The

. Legislature cannot. be deemed to intend that its language

be superfluous and without import.” (Daly v. Hemphill ,

411 Pa. 263.) ;

The larger number of schools in Pennsylvania are lo-

cated so far away from the homes of the pupils who attend

them that the pupils are required either to walk long dis-

tances or to make use of vehicular transportation. .In recent

years the foot traveler, because of the volume of motor traffic

which more and more is approaching the grim appearance

. Of a foreign invasion, is in constant jeopardy of death or

physical disablement, as he proceeds, warily or carefreedly

over the highways of the nation. And those.who ride in

‘private cars can never be certain, because of the ever-'

increasing violence and number of collisions, that they will

3—To avoid a cumburscee distinction, wholly unnecessary in the dis-

. cussion, between the suit filed in Montgomery County and the

one filed in Delaware County, the parties arguing for the uncon-

stitutionality of Act 91 will be called in the opinion, the plaintiffs.

7 Sf mee

Opinion — Supreme Court of Pa. }

arrive at their destnaticns with only the, ailments they en-

joyed when they st on their journeys.

Testimony before a United States Senate Committee

advanced the dire prediction that: Fa

“It seems probable that over the next 5 years we:

will kill on the highways of this country as many

people as we lost to enemy action in all four years

in World War II. In the next decade, we can ex-

pect to kill more than 500,000 people and injure

about 40 million.” (89th Cong. 2d Sess. 112 Cong.

Rec, 6576.) 3

In view of the peril hovering over our streets and roads

like a miasmatic fog, those charged with concern for the ;

safety of children are duty: bound ‘to devise methods and

means for saving the little travelers from harm on their way

to and from school. Obviously the manner in which to

provide these youthful wayfarers with a fair measure of pro-

_- tection against highway mishap is to keep them pedally off

the roads and to transport them in vehicles so formidably

constructed that they may ward off and parry, to the maxi-

mum extent possible, aggression from other vehicles. The — |

school bus with its large heavy wheels and steel fabricated

body seems to be the answer to the worrisome problem.

Pennsylvania. Secretary of Public Welfare, in testifying on

House Bill 381 (later to become Act 91) before the Senate

Education Committee, said: - : it :

__“,.. school bus transportation clearly involves the -

safety and health of our children. The busing of

school children is for their ‘protection against ha-

zards of the roadways and of traffic, against.dan-

SBA eh RK cs oa ERO Pan AE Re me On INE A IRR ET Re

- Opinion — Supreme Court of Pa.

gers occasioned by exposure to weather, by cage

“evils of child molestation.”

He stated further that “with respect to injuries,” a per- |

son is five times as safe in a school bus as in a car. With

respect to death, a person is ten times as safe in a school bus.

asin acar.”. In support of this statement, he cited statistics:

“In 1963, there were 2.3 deaths, per 100,000,000 miles, in

cars, as compared to .2 deaths per 100,000,000 miles in

- school buses.”

The need for the collective ‘motorized transportation of

school children is thus as apparent as a washed-away bridge.

- The opponents of Act 91 do not contest the desirability, in-

deed even the imperativeness, of transporting children: to

school by means of school buses, but argue that they may

not be used to ferry children attending nonpublic schools _

which, of course, include parochial schools. They point to

the First Amendment to the Constitution of the United

States which declares, inter alia, “Congress shall make no

_ law respecting an establishment of religion,” and argue

- that Act 91 offends against it.

Despite the wondrous flexibility of the English language _

it is still difficult to see how one can conclude that, placing

children on a school bus establishes a religion. And even.

if the children are transported to a school which, in addition

to teaching state-approved subjects, offers guidance in the ’

4—Hearings before Senate Education Committee 14-16 (March 24,

1965). -

5—"The Supreme Court of the United States has lield that the First

Amendment has been made wholly applicable to all the States by

the Fourteenth Amendment. (School District of Abington Town-

‘ship v. om: 374 US. wiemia ;

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Opinion — Supreme Court of Pa.

would of faith, this still does not establish a religion. Our: |

whole: body of school law is predicated on the proposition —

_ that once children are served educationally according to

State criteria, their extta-curricular activities cannot ad-

versely affect the State, constitutionally. Indeed, the Penn-

sylvania School Code specifically embraces the concept of

- + nonpublic schools, the title explaining that the law relates

to “the public school system, including certain provisions

poet as well to private and parochial schools.” ,

In his concurring opinion in the case of McGowan v.

Maryland, 366 U.S. 420,'467, Justice Frankfurter said:

-“It was on the reasoning that parents are also at

liberty to send their children to ‘parochial schools

which meet the reasonable educational standards

of the State... , that this Court held in the Everson

case that expenditure of public funds to assure that

children attending every kind of school enjoy the

- relative security of buses, rather than being left to

walk or hitchhike, is not an unconstitutional ‘es-

_ tablishment’, even though such expenditure may

cause some children to go to parochial schools who

would not otherwise have gone.”

Pennsylvania State laws compel all children up to 18

years of age to attend school—not public school, but any

‘school so long as it teaches an approved curriculum and

meets other State requirements. The State awards to non-

public school students the same scholastic credits as those

‘which are earned by public school sudents. It would be

grossly illogical, therefore; to say that the State which does

not differentiate between public and nonpublic pupils, so

far as grades, promotion, and graduation are concerned,

Opinion — Supreme Court of Pa. .

cleaves a line of distinction between them according to |

_ whether they arrive at the school on school buses, in private

motor cars or on foot.

Not only do law and reason refute any such differentia-

tion, but economics in good government dispels the concept.

. The huge budgets required to maintain our public school

* system is a matter of concern to everybody. The imperative

need for the best in education for the youth of our Com-

~monwealth convinces. the civic-minded citizens of the in-

evitability of heavy taxes to meet the expense, but it does not

lessen the weight of the financial burden he must carty.

Therefore, any procedure which may lighten that burden,

consistent with maintaining the highest State educational

standards, is warmly welcomed by the taxpayers. Thus, _

_ for every. nonpublic school pupil picked up on the road by a

"public school bus, that much weight is lifted from the back

of the taxpayer because the maintenance of non-public —

Pa

schools, of course, does not depend upon public funds.

Nearly one-fourth of: the school children in- Pennsyl-

vania attend nonpublic (mostly denominational) schools.

Since the parents of the children in nonpublic schools still }

pay public school taxes, without using public school facilities, —

it has been estimated that the taxpayers, since they. are not

_required to provide teachers, equipment and supplies for the

; nonpublic school children, are financially benefitted to an

amount equal to one-third of the entire educational budget

'- of the Commonwealth.° Indeed, if nonpublic schools were

_ 6~General Fund Budget Message of Governor William W. Scranton,

February 7, 1966 (b):1966-1967 BUDGET OF THE COMMON-

WEALTH OF PENNSYLVANIA (c). “Current Expenditure Per

. °

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_ Opinion — Supreme Court of Pa.

to be abolished, the increase in tax burden to the citizens

of the Commonwealth would be noteworthy and the Com-

monwealth would be hard put to provide the. buildings,

teachers and equipment for the flood of additional children

released into their ware and responsibility, —

Where children are involved, the laws of the Common-

wealth and the decisions of our Courts make no distinction.

between public school and nonpublic school pupils... In 1911 .

the Pennsylvania Legislature enacted a law’ providing for -

the establishment of manual training schools for all chil-

dren, public and nonpublic. It specifically stated-that

- “No pupil shall be’ refused admission to the courses

_in these additional schools or departments, by rea-

son of the fact that his elementary or academic

education is being or has been received in a school

F Pl than a public school. saoeeads

‘When a 13-year-old pupil of a private school sudeciied to

obtain this manual training, taught in a public school in

Altodna, the school district involved refused him admittance,

arguing that the Act was unconstitutional in that it would

ae give “to private and sectarian schools the use of money

raised for public schools, contrary to Article IX, Sec. 7 and

Article X, Sec. 2 of the State Constitution. The Act speci-

fically stated that the manual training school was to be “an

integral part of the public school system in such district.”

_ Despite this language which went much further in linking

public and private schools in an educational undertaking

Pupil, Average Daily Membership for Selected States”, 1965-1966,

Table 17 p. 20, Volume 4, SELECTED EDUCATIONAL

STATISTICS, Bureau of Statistics, Department of Public eee ve

tion, Commonwealth of Pennsylvania (1966).

_1T-S.C. 401, isectained 18, 11, P.L. 309. -

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Opinion — Supreme Court of Pa.

than Act 91 here being discussed, our Court held that the

Act was constitutional, stating:

’ “The benefits and advantages of these additional. #

schools and means of education and improvement

are not restricted to the pupils in regular attend-

‘ance at the elementary public schools and pursuing

the entire prescribed elementary schools, but are

intended to be ‘free to all ‘persons residing in such

district? . . .” (Comm. v. School District of Al- —

toona, 241 Pa, 224. )

: If the pupil of a private school may y attend i a manual

- training school, which by law has become part of the “public :

school system”, certainly he may not under the present law,

be excluded from a bus which in itself, stationary or mobile,

is not a classroom fort instruction.

| The Public School Code provides for children, without

; distinguishing between public and nonpublic schools, many —

facilities, as, for instance, medical, dental and nurse services

. (Section 14-1401 et seq.); driver safety (Section 15-1519);

food and milk supply ‘(Section 13-1335); board and lodging

piers 13-1367), tuition.and maintenance of blind, deaf.

; cerebral palsied children. (Section 13-1376). The School ‘

Code: provides that. school district funds may be ‘used for

traffic safety purposes: .

“The board of directors of any school district acting

_ alone or with another district or districts, may con-

\ funds to another, political subdivision -for

the erection and maintenance of stop and go signal

lights, blinkers or other like traffic control devices.”

_ (1949, March 10, P.L. 30, Art. V, Sec. 526, added

. 4 ‘

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Se ed a a Se aa c . pes ace! —

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Opinion — Supreme. Court of Pa.

\1965, Dee. 1, PLL. ......., No. 369, Sec. 1, 24 PS.

Sec. 5-526). | pce

On the basis of logic and sustained reasoning it would

be absurd to allow nonpublic school children into all these

public services but deny them a ride on a bus to attend a -

school conforming to the requirements of the State educa-

tional program: Nes Cran

But the plaintiffs in the Montgomery. County case argue

-that Act 91 is unconstitutional becatise five of the schools

that educate children riding the school buses are 6wned

and operated by the Roman Catholic Church and that,

therefore, the plaintiffs contend, - ae

“a primary and direct effect of the expenditures

necessary or reasonably attendant upon such main-

tenance and offeration is-to advance the Roman teas |

Catholic Church, the particular local Roman | oS

- Catholic Churches, and. the religion thereof.” :

This same argument was pressed in the case of Everson,

v. Board of Education, 330 U.S. 1, where the constitutionality

of a New Jersey statute. was attacked because it authorized

reimbursement to parents for fares paid for transporting by

public carrier children attending public and Cathilic schools.

The Supreme Court of the United States ruled that the

statute did not offend against the Federal Constitution:

“s+ + We cannot say that the First Amendment pro-

hibits New Jersey from spending tax-raised funds

to pay the bus fares of parochial school pupils as _

a part of a general program under which it pays:

the fares of pupils attending public and’ other

schools. It is undoubtedly true that children are _

helped to get to*church and schools. There is

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Cuttin Supreme Court of Pa.

* even a possibility that some of the children might

_ not be sent to the church schools if the parents.

were compelled to pay their children’s bus fares

3 out of their own pockets when transportation to

, a public school would have been paid for by the

State. The same possibility exists where the state

requires a local transit company to provide reduced

fares to school children including those attending

‘parochial schools, or Where a municipally owned

transportation system undertakes to carry all school

children free of .tharge. Moreover, state-paid

-. policemen, detailed to protect children going to and

- from church schools from the very real hazards of

traffic, would serve much the same purpose and —

accomplish much the same result as-state provi-

‘sions intended to guarantee free transportation of

a kind which the ‘state deems to be best for the

‘ _ school children’s welfare. And parents might re-

"fuse to risk their children‘ to the serious danger —

of traffic accidents going to and from parochial

schools, the approaches to which were not pro-'

tected by policemen. Similarly, parents might be

reluctant to permit their children to attend schools .

_ which the state had cut off from such general gov-

ernment services as ordinary police and fire protec-

tion, connections for sewage disposal, public high-

ways and sidewalks. Of course, cutting off church

schools from these services, so separate and so in-

disputably marked off from the religious function, * ;

would make it far more difficult for the schools to

operate. But such is obviously not the purpose of

ee ae

big First Amendment.” (Emphasis supplied. )

. Opinion — Supreme Court of Pa.

‘The United States Supreme Court found that the paro-

chial schools there under consideration met New Jersey’s

school requirements. The State contributed no money to

these schools; it did not support them. The legislation which -

provided for the busing of the parochial children did “no

thore than provide a general program to help parents get

their children, regardless. of their religion, safely and ex- .

. peditiously. to and from accredited schools.” Therefore, the

law was not at odds with the First Amendment.. The same

is true of Pennsylvania’s Act 91. In its discussion the Su-

preme Court referred to the case of Pierce v. Society of

Sisters, 268. U.S..510. There, the State of Oregon had

passed a law requiring parents, under penalty of punishment

for disobedience, to send their children to public schools.

“The Supreme Court held that such a law constituted‘an un-

reasonable interference with the liberty of parents and so.

violated the Fourteenth Amendment. The Court said:

“The child. is not the mere creature of the State;

those who nurture him and direct his destiny have.

the right, coupled with the high duty, to recognize

and prepare him for additional obligations.” (p,

535). mz

Commenting on the Pierce case, the Supreme Court »

said in the Everson case:

“Parents may, in the discharge of their duty under

state compulsory education laws, send their chil-

dren to a religious rather than a public school if

the school meets the secular educational require-

ments which the state has the power ‘to impose.”

(p. 18) .

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Opinion — ‘Supreme Court of Pa.

"The Supreme: ‘Court “also pointed out that the First

\ endment, in addition to abjuring the establishment of —

religion, an declared that there must be no prohibition in

‘the “free exercise” of réligion. Thus, while government

may-not use a legislative tool to build.a church, neither may

it employ a parliamentary bulldozer to demolish a church

already constructed. “The prohibition that the State may

not offer aid ‘to the institution of religion, applies just as

strongly in the other direction, that is, it may not offer harm

to religion.” (Everson,..supra, p. 18) :

| Religion i is part of the American way. of life. Beginning

- with the Ianding of Columbus on the shores of San Salvador - -

when the Genoese navigator offered prayers of gratitude to

‘God for the faith which sustained him in the preparation

for, and the perilous achievement of, his hazard-laden

voyage, continuing through the Mayflower Compact which

is headed by the solemn and sacred words: “In the name

of God Amen!” and calls upon the Deity for guidance and

support in the new life to begin on the American continent,

‘ carrying on through the Declaration of Independence and

the Constitution of the United States in their reverent sup-

plication to’a Supreme Being, and standing fast in State

+ papers and the pronouncements of our Presidents, religion

_ is inseparable from the history of the United States. The ’

United States Supreme Court said in the case of Abington

School District v. Schempp, 374 U. Ss. 203, 213:

This background is evidenced. today in our

; pete life through.the continuance in our oaths

of office from the Presidency to the Alderman of

the final supplication, ‘So help me God.’ Likewise

each House of the Congress provides through its

oe :

Ge Ses :

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Opinion — Supreme Court of Pa. |

Chaplain an opening prayer, and- the sessions of :

this Court are declared open by the crier in‘a short

ceremony, the final phrase of which invokes the

grace of God. Again, there are such manifesta-

tions inour military forces, where those of our

. citizens who are under the restrictions of military .

‘service. wish to engage in voluntary worship. In- — -

_ deed, only last year an official survey of the country

indicated that 64% of our people have church mem-

bership. Bureau of Census, U. S. Department of

~ . Commerce, Statistical Abstract of the United States,

48 (83d ed. 1962), while less than 3% profess no

religion whatever. Id., at p. 46. It can be truly

said, therefore, that today, as in the beginning, our

. national life reflects a religious people who, in the

words of Madison, are ‘earnestly praying, as . . . in

duty bound, that the Supreme Lawgiver of the Uni-

verse... guide them into every measure which J

be worthy of his . . . blessings . .

Even Justice Rutledge, writing the dissent in ‘he Ever- .

son case, acknowledged that:

“Our constitutional policy . . does not deny the

value or the necessity for religious training, teach-

ing or observance. Rather it secures their free

. exercise.” (p, 52)

Every daily session of the Courts of this Common-

wealth open with.the adjuration: “God save the Common-

_ wealth and this Honorable Court.” Each witness who takes

an oath in all our Courts is required to avow that he will:

tell the truth, the whole truth, and nothing but the truth,

for which he will answer “on the’ last Gon Day.” At

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- Opinion — Supreme Court of Pa.

_ patriotic ceremonies where the national anthem is sung, the

citizens lift their voices to the words: “This be our motto ‘In’

God Is Our Trust’.” The Pledge of Allegiance to the Flag

of the United States proclaims “One Nation under God.”

The constitutional prohibition against the establishment .

of religion was never intended to deny the free exercise of

religion: Thomas Jefferson, who the Declaration of

Independence, and who also wrote, Virginia’s Bill for Reli-

gious Liberty, proclaimed the omnipotence of the Author

of the Universe:

“Almighty God ‘os crated. the mind free; that

all attempts to influence it by temporal punishments

or burthens, or by civil incapacitations, tend only to

beget habits of hypocrisy and meanness, and are

a departure from the plans of the Holy author of

our religion, who being Lord both of body and

mind, yet chose not to propagate it by coercions

on either ..

Any elles of legislation, dctistees. which would

deny the fullest voluntary freedom in religious worship would -

not only be contrary to these American historical expressions

of faith, but would also offend against the First Amendment

with its bell-clanging proclamation of religious freedom.

It was because the Founding Fathers foresaw the possibility -

of forces and influences working to destroy the faith of man

in a Supreme Being that they made the free exercise of reli-

gion part of the same swing of the pendulum which prohibits _

the establishment of a State religion.

‘In Zorach v. ». Clauson, 343 USS. 306, the as Court

said: }

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Opinion — Supreme Court of Pa.

“The First Amendment, however, does not say that

in every and all respects there shall be a separation

of Church and State. Rather, it studiously defines

the manner, the specific ways, in which there shall

be no concert or union or dependency one on the

other . . . We are a religious people whose institu-

tions presuppose a Supreme Being. We guarantee

- the freedom to worship as one chooses. We make

- room for as wide a variety of beliefs and creeds as

the spiritual-needs of man deem necessary ... We

find. no constitutional requirement which makes it

necessary for government to be hostile to religion

‘and to throw its weight against efforts to widen the

effective scope of religious influence.”

. From this same pulpit of American historical oasis. |

the Pi cia Court declared in Everson:

*. . . New Jersey cannot hamper its citizens in the

in exercise of their owrF religion. Consequently,

it cannot exclude individual Catholics, Lutherans,

Mohammedans, Baptists, Jews, Methodists, Non-

believers, because of their faith, or lack of it, from

receiving the benefits of public welfare legislation.”

Act 91 is public welfare legislation and, from the reser-

voir of public welfare, all races and religions may drink

unimpededly in the’ quenching of normal thirsts. Indeed

‘one of the fundamental reasons for the State in a civilized

society is to provide for the public welfare.

The. Everson case is the law of the land and rules

squarely against the contentions of the plaintiffs in the —

Courts below in so far as the Federal Constitution is con-

cerned. Our own Court upheld the Everson case by name

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Opinion — Supreme Court of Pa.

in 1956 in Schade v. Allegheny County Institution District,

386 Pa. 507. In that case an attempt was made to declare

- unconstitutional. the Juvenile Court Law of Allegheny

County of June 3, 1933, P. L. 1449, and the County Institu-

tion District Law of June 24, 1937, P. L, 2017 because they

_ provided for the payment of tax revenues raised by Allegheny

County to denominational or sectarian institutions or homes

-for the board, care and maintenance of neglected or de-

pendent children on order of Allegheny County’s Juvenile

Court. The complaining plaintiffs argued that these laws

violated the Pennsylvania Constitution which prohibits ap-

propriations “to any denominational and sectarian institu-

tion, corporation or association.” This Court rejected the

. contention of the plaintiffs that the payments to the denom-

inational or sectarian defendants tended toward “govern-

mental ‘establishment of religion’, and, consequently are_

violative of the Fourteenth Amendment.” Mr. Justice Jones,

speaking for our unanimous Court, said:

-“Tt it unnecessary to devote much time to this con-

tention. The Supreme Court has, in principle,

settled it adversely to the appellant’s position. See

_ Everson v. Board of Education, supra, where it was

held that a State’s use of public tax funds: for the

_ transportation of pupils to and from sectarian

schools did not serve to promote the establishment

of religion.”

We here hold that Act 91 does not offend against the

_ First or- Fourteenth Amendment to the Constitution of the

United States. Does it transgress any provision or provi-

_ sions of the Constitution of Pennsylvania? We have already

touched on certain phases of the State Constitution in con-

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Opinion — Supreme Court of Pa.

nection with a discussion of alleged trespassing on the do-

\mains of the. United States. We will now examine speci-

fically the argument that Act 91 cannot survive under pro-

hibitory provisions of our own State organic law. ~

_ The plaintiffs contend that Act 91 violates Art, 1, Sec, 3

of the State Constitution:

“All men have a natural and indefeasible right to ©

worship Almighty God according to the dictates of

their own consciences, no man can of right be

compelled to attend, erect or support any place of —

worship, or to maintain any ministry against his

consent; no human authority can, in any case, _

_ whatever, control or interfere with the rights of con- ;

science, and no preference shall ever be given by <—

law to any religious establishments or modes of ie

worship.”

' The Abington Township brief asserts precisely that Act

9]— | | |

“compels all the real property owners of the Town-

_ ship to support places of worship and to maintain

a particular religious ministry against their consent;

and (2) it gives preference by law to certain reli-

gious establishments and modes of worship.”

These assertions are so feeble of merit that they must

fall in the slightest breeze of analysis. When the Constitu-

tion of 1874 was being debated in convention, no reference

was made to the subject of pupil transportation. ‘Supporting

‘a place of worship meant providing funds for the main-

tenance of a church. The phrase certainly could not have

referred to motor transportation. The concept ofa horseless

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ini was as unimaginable in 1873,.as walking on air 150

miles above the earth was inconceivable in 1946. The first —

automobile to awe human beings, excite communities and

‘startle animals did not honk a horn or ‘turn a wheel until

_° 1892. Thus, it can be stated with historic conclusiveness

that the framers of the 1874 Constitution could not have had

in-mind a prohibition against motor transportation for chil-

dren when they declared that no citizen of the State should

"be required to support a place of worship. |

Even in quixotic imagination, a school bus cannot be

regarded a place of worship. The general gayety, levity and

juvenile frivolity which prevails among children riding any

transportational vehicle rules out the solemnity of a place

of worship. Nor can transporting a child to a church-con-

nected school be regarded as supporting a place-of worship.

The purpose of the school bus is to take children to a struc-

ture where they will receive a secular education. Thus the

bus serves a secular, public purpose, and as stated in Everson,

“it is much too late to argue that legislation intended to

facilitate the opportunity of children to get a secular educa-

tion serves no public purpose.”

' The fact’ that the parochial pupil, in addition to receiv-

ing a secular education, is offered religious guidance, cannot

take away the public nature of the curriculum he studies—a

curriculum drafted and supervised by the State. The Su-

preme Court explained in Everson that “it does not follow

that a law has a private rather than a public purpose because

it provides that tax-raised funds will be paid to reimburse _

individuals on account of money ‘spent by them in a way |

‘which furthers a public program.”

The plaintiffs’ assertion that Act 91 “gives preference -

by law to certain religious establishments and modes of wor-

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Opinion - Supreme Court of Pa.

ship” is self-defeating on its face because there is nothing -

in the Act which speaks of preference for nonpublic schools.

: Indeed the Act states that the buses on which the nonpublic

school pupil may ride “shall be over established public

school routes.” Thus, while nonpublic students eventually

reach the nonpublic school, there is no provision that the

bus is to take them to the doorstep of that school, or that the

bus will pick them up at their homes. So far as nonpublic

school children are concerned, ‘they must, in a universal

Mohammed sense, go to the buses rather than that the buses .

come to them. :

It is also to be noted: particularly that Act 91 makes no

‘special provision for parochial schools. It applies all-sweep-

__ ingly to children attending nonpublic schools, whether those _

schools have an association with a church or not. -In addi-

tion, it is significant that the nonpublic schools will not be

the donee of funds or busing facilities, nor will they have any

control over, them.

The plaintiffs do not charge. that nonpublic schools

would, under Act 91, be the recipient of financial benefits.

But even if this were to be an indirect result of the legisla-

tion, this fact in itself would not unconstitutionalize the law.

In order to come within the constitutional ban, financial

benefits accruing to a nonpublic school would have to be

. direct and not merely incidental, supplemental or peripheral.

In Gallatizin Borough School District, 164 Pa. 629, the com-

plaining party sought to enjoin a school district from em-

_Ploying as teachers members of a religious order who con- -

tributed all their earnings, above their maintenance, to the : _

religious order of which they were members. ‘This Court

rejected the complaint, stating through the scholarly Justice

_Dean, that: — |

—20a— “

Opinion — Supreme Court of ‘Pa.

“It isnone of our business, nor that of these appel- .

lants, to inquire into this matter. American men

and women, of sound mind and twenty-one years —

of age, can make disposition of their surplus earn-

ings as suits their own notions. We might as well,

so far as any law warranted it, inquire of a lawyer,

‘ before admitting him to the bar, what he intended -

to do with his surplus fees, and make his answer a

test of admission. - What he did with his money —

could in no way affect his right to be sworn as an

_ officer of this court, therefore it would be impertin-

ence for us to inquire.”

The plaintiffs find in Act 91 a i of Article 3,

Section 18 of the Pennsylvania Constitution, which reads,

inter alia: ~ Rs

“No appropriations shall. be made for charitable,

educational or benevolent purposes to any person

or community.nor to any denominational and sec-

tarian institution, corporation or association.”

In Schade v. Allegheny County Inst. District, supra, we

affirmed the statement of the Court of Common Pleas of

Allegheny County that:

_“The cost of the maintenance of neglected children

- either by the State or the County is neither a charity

nor a benevolence, but a governmental duty.”

" Educating the children of the state is a governmental pe 7

9 if excessive distance builds a wall around the-place of °

education, government must level that wall. ;

—Zie—

Opinion — Supreme Court of Pa.

Moreover, Act 91 does not require any appropriation

from the Commonwealth. In fact, the Abington Township

. School District admits this in its brief:

“The draftsmen of the Act No. 91 of June 15,

1965, drew it so that the appropriations are and

will be made, not by- the General. Assembly, but

- by instrumentalities thereof (school boards). Fur- _

ther, the Act is drawn so that no money passes.

directly from the state or from its-instrumentalities

into the treasury of any sectarian institution.”

Although Abington cites the Schade v. Allegheny County

Inst. District, supra, in support of its contentions, we have

seen that it is a sword against those contentions rather than

a shield for it. Our Court ruled that the payments made to.

the institution supporting neglected children is “in legal

‘effect payments to the child.” “The school buses under Act

91- are operated for the benefit of the children who ride it

and not for the benefit of the church which may be associated

with the school in which the children receive a State-super-

vised education. |

A public fire department is maintained by the taxes, of .

the people, but no one would be so shortsighted as to argue _

that firemen had no duty to extinguish a conflagration which

was consuming a church, no matter what the denomination.

Policemen are assigned to duty at and about churches but

no one would say that this is an illegal assignment of duty. /,

Churches and religious establishments, regardless of creed,

form part of the whole mosaic of our civilized society and

should, and do, receive the protection of the State of their

_ physical properties. “The Cofstitution does ‘not prohibit

the State or any of its agencies from doing business with

y

: —i—

- Opinion — Supreme Court of Pa.

denominational or sectarjan institutions, nor from paying

_ just debts to them when incurred at its direction or with ‘its

approval. Numerous cases can be readily visualized where

such situations have occurred: i.e. payment of the bill of ;

injured employee ‘to a sectarian hospital.” (Schade v. wi

legheny County Inst. Dist. » SUPTS, P. 512).

The Abington brief cites. Article 10, Section l of the

State Constitution:

“The General Assembly shall provide = the main- |

tenance ‘and. support of. a thorough. and. efficient

system of public schools, wherein all the children

of this Commonwealth above the age of six years.

may be educated . .

‘and argues that this ae the constitutionality of Act 91.

Tt does not even approach within firing range of Act 91. The

constitutional provision in question mandates the Legislature

___ to provide for the establishment “of a-thorough and efficient —

system of public schools,” but it does not say that there may

not be schools supplemental to those supported by the State.

If this constitutional provision prohibited the creation or

existence of other schools, then every private school in the

State would have to be aaa which, of course, would

be absurd. e

Section 2 of Article 10 states that:

“No money raised for, the support of the aay”

schools of the Commonwealth shall be appropriated

- to or used for the support of any sectarian school.”

Abington sees in this section another bulldozer crushing out

the life of Act 91, bist Abington itself throws the bulldozer

| eae oth con netinege, namely,

—iie—

Opinion — Supreme Court of Pa. |

“One section of the Public School Code, viz., sec.

1401, relating to school health services, does extend

.to children-in private schools and results in public

expenditures for the benefit of all children of school

age, whether they attend public or private schools.

Of course, the health of all children residing within

the Commonwealth is a matter of legitimate con-

cern of the General Assembly . . . Prograizis such

as health and dental examinations for-all children

of certain ages are unrelated to > the * support of any

sectarian school’.” gona tks

Indeed, under existing law, children in sectarian schools re-.

' ceive tax-supported health services. (Act of July 15, 1957,

P.L.; Sept. 29, 1961, P.L. 1743; 24 P.S, 14-1401 et seq.)

san i eth tl es ih Cmmorm

8)

f legitimate concern of the General Assembly, why ._

- would not their safety also be a matter of legitimate concern.

of the General Assembly? As already quoted, Arlin M. -

Adams, the Pennsylvania Secretary of Public Welfare, said:

“The busing of school children is for their ‘protec-

tion against hazards of the roadways and of traffic,

against dangers occasioned by exposure to weather,

against evils of child molestation.”

If the General Assembly can act and appropriate to save

children from the onslaughts of diphtheria, smallpox and

other infection diseases, is it impotent to protect them from

the pneumonia-provoking ‘blasts of winter, the mangling

fenders of a drunk-driven automobile, and- the lecherous

advances of the — molester? |

Opinion — Supreme Court of Pa.

. We have seen that the bus transportation authorized

by Act 91 must traverse routes which lead to public sehools.

" mercies of inclement weather, culpably, negligent drivers and

- children disturbers? In not a few instances the school buses

picking up only -public school children travel with many.

in‘an unfilled bus, leaving him to plod the weary miles on

foot?, With such school buses on the road, expending no

extra gasoline te-pick up nonpublic school children, are they

to return home and ask their parents for private transporta-

_ tion beyond seat means to supply?

In all the briefs which hes — filed- in ‘cininii to

Act 91, there is not one statement or word remotely suggest-

as oe: that the transportation of nonpublic school children will -

the slightest be. deleterious to the public, the individuals

involved, or the educational program of the State. On the

contrary, we have seen how this school busing will be protec-

| tive of the health and the safety of the children. In addition,

such busing will be salubrious and educational for the. chil- |

dren in that public and nonpublic school children

¥ _ mingle, converse and soon learn that children are the same

agen everywhere. These youthful riders, regardless of religious

attachments, speak the same language, salute the'same Flag, °.

_ play the same games, laugh at the same jokes, entertain the. ~

. same love for their respective parents, and demonstrate the

same devotion to the ideals of our country. All this comes |

;

|

‘under the canopy of preserving the health, welfare and

safety of the children, one of the most fundamental respon-

_ sibilities of the State, and specifically provided for in the

Public School Code the State. oo

Are parochial children: on these routes to be left to the —

empty seats. Is a nonpublic school child to be denied a seat |

ss

Opinion — Supreme Court of Pa.

Paradoxically, the plaintiffs argue that Act 91 goes too

' far and then, that it does not go far enough. They complain

: that the statute does not provide for transportation of chil-

dren who live close to their schools. But if the school is

close enough to walk to, why must there be vehicular trans-

poxtation? Sufficient to a trip is the distance thereof.

Then the plaintiffs say that students attending sivats

schools for profit are omitted from the statute. In cases of .

private schools where education is imparted, on a profit basis, —

‘ _ it can be assumed that if the parents or guardians can afford

expensive special tutoring for their children, they can afford

to provide private safe transportation for their children.

The brief filed in behalf of the plaintiff i in the Deleware

County case complains that “nonpublic school children whé

do not live near an established bus route will still face the

same traffic hazards as did-before.” The obvious answer -

here is that if these students are confronted with such dan-

gers as will justify extending the scope of the Act, the General

Assembly can provide for that extension, but it is no reason-

able argument to say that because a statute does not make

provision for a hypothetical minimal hazard, it should ignore

_ a proved multiple peril.

This same brief argues that there i is no analogy between

bus transportation and the provision for lunches and medical

_care for nonpublic school children, specifying: “Lunch and

: medical care are things which a child must have, irrespective

~ of whether or not he attends school.” In our society it is

_ accepted that food for the mind in the form. of education is

no less necessary than food for the stomach. With regard

to medical care, the supplying of bas transportation may be —

—26a— .

Outnion — Supreme Court .of Pa.

the means of protecting children from a daaidocing

exposure which would lessen the need for medical care.

~ It was also argued before us that Act.91 will “accelerate

the fragmentation of our society and increase religious con-

flicts.” The exact reverse is true. The closer different reli-

gions get to one another, the less will be the reason for dis- _

sension. We can take judicial note of the fact that in recent

years noble efforts have been made in establishing inter-faith

councils, leading to the hope ‘fulfillment of wiping away

antagonisms between different churches ‘and beliefs. Bring- -

ing children together in buses on their way to the temple of

learning can only help to hasten the eventual attainment of

the true brotherhood of man. The friendships made by

' children as they travel side by side and in conversational

intimacy, to and from school and home, in the most forma-

“tive years.of their lives, will grow stronger with the passing

of the years, increasing the mutual understanding which is

the most potent welder in a common cause for peace and

happiness.

Ae Finally, the plaintiffs argue that Act 91 is unconstitu-

tional because of “vagueness.” The only thing vague in this

entire situation is the charge of vagueness advanced by the

plaintiffs. It is like a splash of rain that has no target and

leaves no durable impression. A reading of Act 91 will re-

veal its stark simplicity, specificity. and secularization. It has

but one aim and that is to place nonpublic schools, in the

matter of student transportation, in the same classification

as public schools, so long as the nonpublic schools observe

the public school curricula. There is nothing in either the

Federal or State constitution, the laws of the Common-

wealth, or in fundamental justice to amen so salutary an

+——— e—-—- -& --——--—--- od

&

—27Ta—

Opinion — Supreme Court of Pa.

The Complaints in the courts below are dismissed, each

__ party to pay own costs, .

Justice Jones files a concurring opinion.

Justice Roberts files a concurring opinion in which Jus-

_ tices Jones, Eagen and O’Brien join. . -

- Chief Justice Bell files a dissenting opinion.

Justice Cohen files a dissenting epinion.

—28a—

Opinion — Supreme Court of Pa:

CONCURRING OPINION .

_ "FILED: January 17, 1967

The thrust of plaintiffs’ attack on the Act of June 15, -

1965, P.L. , 24 PS. §13-1361 (hereinafter referred to as

_ Act 91) is that it violates the separation of church and state

mandated by the Constitution of the United States and that

it violates various provisions of the Constitution of Pennsyl-

vania. I concur with view, shared by all but one member

of this Court, that the Everson case forecloses this Court

from holding that the statute violates the federal guarantee

of separation. It is also my view that, even admitting that

the statute will require the expenditure of additional funds

for the bussing of school children, Act 91 does not violate ©

the Constitution of Pennsylvania.

Roserts, J.

In asserting their challenge to the Constitution of Penn- |

sylvania, the plaintiffs have invoked no less than the six —

- following provisions of our constitution:

Article I, §3:

All men have a natural and indefeasible right to wor-

‘ship Almighty God according to the dictates of their own

consciences; no man can of right be compelled to attend,

erect or support any place of worship, or to maintain any

ministry against his consent; no human authority can, in

any case whatever, conirol or interfere with the rights of -

conscience, and no preference shall ever be given by law

to any religious establishments or modes of worship.

Article III, $17: : ; :

No appropriation shall be made to any charitable or

educational institution not. under the absolute control of the

—29a—

Opinion -— Supreme Court of Pa.

Commonwealth, other than normal schools established by

law for the professional training of teachers for the public

schools of the State, except by a vote of two-thirds of all the

~ members elected to each House.

Article III, §18:

No appropriation shall be made for charitable, educa-

tional or benevolent purposés to any person or community

nor to any denominational and sectarian institution, corpora-

tion or association: Provided, that appropriations may be

made for pensions or gratuities for:military service and to

*. blind persons twenty-one years of age and upwards, and for

assistance to mothers having dependent children and to aged

persons without adequate-means of support, and in the form

of scholarship grants or loans for higher educational pur-—

poses to residents of thé Commonwealth enrolled in institu-

tions of higher learning, except that no scholarship grants or

loans for higher educational purposes shall be given to per-.

_ sons enrolled in a theological seminary or school of theology.

Article IX, §7:

The General Assembly shall not t authorize any county,

- _ city, borough,.township or incorporated district to become a

stockholder in any company, association or corporation, or

to obtain or appropriate money for, or to loan its credit to,

any corporation, association, institution or individual.

- Article X, §1:

The General Assembly shall provide for the mainten-

ance and support of a thorough and efficient system of public

schools, wherein all the children of this Commonwealth

above the age of six years may be educated, and shall appro-

‘priate at least one million dollars each year for that purpose.

Article X, §2 :

—30a—

~ Opinion — Supreme Court of Pa.

No money raised lee the support of the public iaile

_ of the Commonwealth shall be appropriated to or used for

the support of any sectarian schools.

- A harmonious reading of these six provisions forces me

to an observation which I deem crucial to the setting in which

the plaintiffs’ challenge must be considered: Although Article

I, Section 3 and Article X, Section 2 clearly establish a wall

of separation between the Commonwealth and religious -

institutions, the more recently adopted Article II, Section 18'

seems to contemplate certain instances in which public

- monies may properly be expended in the course of educa-

tional activities having a connection with’ church-related

institutions. The last part of the proviso. of Article III, Sec-

tion 18, suggests to me state constitutional sanction for the

payment of scholarship grants for higher education in those

church-related. institutions not teaching theology. I can see

no other reasonable interpretation of Article III, Section 18’s

specific exclusion of theological schools and its silence on the

matter of other programs conducted at institutions of higher

learning.

° ‘That there are limits to the wall of separation erected by

the Constitution’ of Pennsylvania is a conclusion which is

_ not only required by constitutional language itself, but de-

manded by the practical realities of life in a modern inter-

dependent community where there must of necessity be many

points of contact between the ageneies of government and all

institutions, whether church-related or not. It is the in-

evitability of these points of contact which: has undoubtedly

permitted to exist, without significant successful challenge,

the provision of many governmental services—fire, police,

1—Amendment of November 5, 1963.

| Cla. |

Opinion — Supreme Court of Pa.

sewage—which in some sense benefit the conduct of. reli-

giou8 institutions. ‘Viewed in terms of hard realities, there- ©

fore, it is not the mere benefit to a religion which causes a

service provided by government to violate our Constitution. -

While provision of a generat governmental service,

which benefits a church-related institution, may not be for.

that reason alone’ unconstitutional, it is clear that for, the

constitutional language separating church and state to have

the vital effect it was meant to have by its authors, there ©

must be some areas and some services which government

may not provide to religious institutions. The real difficulty

is in gleaning from the sweeping phrases of our constitutional.

document the place where.the line must be drawn.

_ The defendants in this case, as well as the opinion of

the Court in the main rely upon the:so-called child benefit

theory to draw the line separating the constitutional from

the unconstitutional. Given the presumption in favor of the

constitutionality of acts of the Legislature’ and given this —

Court’s duty to accept, unless palpably unreasonable,’ the

Legislature’s view. as to the reasonable relation. of statutes.

2—E.g., Pritchard v. Williston Township School Dist., 394 Pa. 489,

493, 147 A. 2d 380, 383 (1959). “An Act of Assembly will not

be declared unconstitutional unless it clearly, palpably and plainly .

violates the Constitution,” Daly v. Hemphill, 411 Pa. 263, 271,

191 A. 2d 835, 840 (1963); Chartiers Valley Joint Schools v.

Allegheny County Bd. of School Directors, 418 Pa. 520, 546, 211

_A. 2d 487, 501 (1965); Milk Control Comm’n. v. Battista, 413

Pa. 652, 659, 198 A. 2d 840, 843, appeal dismissed, 379 U'S. 3,

85 S. Ct. 75 (1964).

3—Commonwealth v. Life Assur. Co. of America, 419 Pa. 370, 214

A. 2d 209 (1965), appeal dismissed, 384 U.S. 268, 86 S. Ct. 1476

(1966); Loomis v. Philadelphia School Dist. _ 376 Pa, 428,

431-32, 103 A. 2d 769, 771 (1954).

| —82g—-

Opinion — Supreme Court of Pa.

to the public health, safety and welfare, I concur in the ion

. that Act 91 is a safety measure whose object is the protection

of children from:road hazards. I also egree with the Court

that such a conclusion is a crucial factor in determining the

constitutionality of Act 91. It is my belief, however, that the .

constitutionality of legislation which benefits directly or in-

directly a church-related institution may not be held consti-

tutional merely because it is determined that the purpose or

effect of the legislation is the welfare of children or, for that

matter, any other proper object of legislative concern. Our

Constitution’s prohibition of any compelled support of a place’

of worship, maintenance of a ministry or preference of reli-

gion encompasses not only the proscription of financial aids

to religion, but also any. other governmental action creating

special government approval of or involvement with religious

activities.‘ And, the background of the Commonwealth’s

_ constitutional pronouncements on freedom of religion sug-

gests strongly that prohibition of such aid to religion is, if ,' a

anything, stricter. than the proscription -of financial aids.°

Moreover, for such non-financial governmental involvement

or approval to be constitutionally proscribed, a measure need °

not be as blatantly violative as a statute compelling weekly

attendance at a house of worship. Far less overt forms of

- involvement and association would, in my view also be con-. -

_ stitutionally void, and I can imagine measures which, though

“shag eenetly come within the child benefit theory, would

yor Gobitis v.’ Minersville School Dist., 21 F: Supp. 581, 584-86 :

(E.D. Pa. 1937), decree entered, 24 F. Supp, 271 (E.D. Pa. 1938), |

aff'd., 108 F. 2d 683 (3d Cir. 1939), rev'd., 310 U.S. 586, 60 S. 7 |

Ct. 1010 (1940).

‘521 Ericyclopedia Américana 512-15. (1957 ed.); Bucka eli.

Examination of the Constitution of Pennsylvania 5 (1883)>

a

ae ie EP OT AL A + OU Et a. him LAA AN A ORNM het Cie Dri BR ol hal renee: fad — we “ is me

—35a— wef

Opinion — Supreme Ci Court of Pa.

bring government and religious institutions in such close

‘association as to constitute, by virtue of implicit sanction of.

the government presence, the proscribed ‘ ‘supper’. “main-

_ tenance”, and “preference”.®

. Thus what is ultimately persuasive to me in the instant i

--case is not only that Act 91 is a welfare measure, but also

the fact that the transportation of students iss in the phrase

__ of Everson, “so separate and indisputably marked off” from

functions in any sense associated with’ religion. In other

‘words, though I.accept the conclusion that not only actual

teaching or religion, but also the conduct of many other |

programs in parochial schools, is infused with religious sig-

nificance, it seems to1 the clear that the process of transporting

parochial students in a public bus is so devoid off@any

psychological, let alone religious, signifigance, that it@does

not bring the government into an association with the school

which implies the approval or sanction proscribed by our —

constitution. Indeed, the mere geographical distinctness of

_ ‘the facility being provided out of public funds and church-

related institution underscores the lack of involvement of —

government with religion that Act 91 creates. The simple

fact is that Act 91 does not even envision the use of a public *

facility within the confines of a religious ‘institution; on the

contrary, the language of Act 91 ests that in many in-

stances parochial school students not even be carried

to the doors of their schools... SM a

6—Compare Hysong v. Gallitizin Borough School Dist., 164 Pa. 629,

658-62, 30 Atl. 482, 484-86 (1894) (dissenting opinion). See also

* Commonwealth v. Herr, 229 Pa. 132, 78 .Atl. 68 (1910) (per

curiam)... :

7—Everson 'v. Board of Educ., > 50 US. 1, 18, 67 S. Ct. 504, 512-13

: (1947).

* _—

as —34a— .

Opinion — Supreme Court of Pa.

>

Finally, I think it must be pointed out that the dissenting

‘ opinions are incorrect in their view that Act 91 is unconsti-

tutional by virtue of its scheme of classification. It must be

' remembered that “courts may not question the wisdom of the

- legislative classification unless there can be found no reason-

able ground for it”® and that “the reasonableness of the.

classification made is’ for the Legislature in the first in-

stance.” The Legislature’s exclusion of children attending

schools operated for profit may have been motivated by a

judgment that families of means sufficient to afford such

schooling ‘are not, like families of students attending non-

profit schooling, deterred by cost from ensuring that their

_ children travel to and from school by a safe method of trans-

portation. I fail to see why that would not be a basis for

classification, reasonable within <his Court’s above mentioned

test. As to Mr. Chief Justice Bell’s contention that Act 91’s

exclusion of children’ attending schools operated for profit |

reveals it as solely intended! to benefit sectarian education, the _

answer is simple: Act 91 includes not only children attending

_ sectarian schools not operated for profit, but also children

attending non-sectarian, non-public schools not operated for

.” MR: JUSTICE JONES, MR. JUSTICE EAGEN and

a MR. JUSTICE O’BRIEN join in this opinion. es

|

. : |

- “8—Loomis v. Philadelpliia School Dist. Bd., 376 Pa, 428, 432, 103 A.

_ 2d 769, 771 (1954). See Commonwealth v. Life Assur. Co. of

America, 419 Pa. 3/0, 214 A. 2d 209, appre Contes, S08 DS.

268, 86 S. Ct. 1476: (1966).

9—Loomis v. Philade phia School Dist. Bd. one

_ 108'A, 2d at 771.

ee -

ie

Opinion — Supreme Court of Pa.

CONCURRING OPINION :

Jones, J. _* °°" SLED: January 17, 1967

_ With the result reached by the majority of this Court

I am in accord...

It is my opinion ‘that the Act of June 15, 1963, PLL.

Pinus , No. 91, 24 P.S, §13-1361, (amending Article XIII,

Section 1361 of the “Public School Code of 1949”, Act of

. March 10, 1949, P.L. 30, 24 P.S. §13-1361), which, “for the

health, welfare and safety of the children‘of the Common- |

wealth”, requires that school districts . certain circum-

stances provide free transportation for pupils attending non-

public elementary and high schools not operated for profit,

is valid legislation. The-principal challenge to such legisla- -

_ tion proceeds upon the theory that it is offensive to both the —

- Constitution of the United States' and the Constitution of

this Commonwealth,

As to whether this statute violate: ne United : States

Constitution, the decision of the Sup Court of the United

States in Everson v. Board of Education, 330°U‘S. 1, 67 S. CG...

504 (1947) is controlling: Everson compels the conclusion oe

that the instant statute does not violate the First Amendment.

As to whether this statute violates the Constitution of

this Commonwealth I am of the opinion that it does not.”

In this Commonwealth, the parents and guardians of

children are compelled by law to send such children, up to a

certain age, to school.. In Pierce v. Society of Sisters, 268

USS. 510, 45 S. Ct. 571 (1925), the U. S. Supnines oun hep

“|—Specifically, the First Amendment.

Soren t, Sees % See 5 Article III, Section 18 and

Article X, Section 2. _ 3

—36a—

bli Supreme Court of Pa.

‘tale’ ha if a. pereehial school meets the secular pe ang

_’ tional requirements of the state, parents and guardians who

send children to such parochial school: satisly the beaeard |

sory, education” aeamate a the state.

ie The primary purpose of the instant statute is to insure

the safety and the well-being of children, whose parents and -

’ guardians are compelled by law to send them to school,

while such children are being transported to and from such

school, whether the school be public or parochial. The

statute constitutes an exercise of the police power of the

Commonwealth; its.emphasis is upon the welfare and safety _

of children while they are being transported to and from

school and not upon the nature of the school to or from |

_. which they are being haven Its aim is, secular, not

: religious. : i

e

The framérs of our ; Constitution contemplated that the

church and the state be kept separate and apart and that the _

state maintain a status of impartiality and neutrality toward.

_ all religions and religious beliefs. . The instant legislation

" “neither advances not inhibits religion” in the constitutional

sense (See: School District of Abington Township, Pa. v.

Schempp, 374 U.S. 203, 83 S. Ci. 1560 (1963), but simply

provides a method of safe transportation for children while

performing. the state-compelled duty of attending school.

~ In my view, neither the U. S. Constitution nor the Ooi

__~ ‘stitution of this Commonwealth prohibits or proscribes this

“statute so vital to the wenaeng of children pursuing their

3 >

Opinion — Supreme Court. of Pa.

"DISSENTING OPINION

Bett, C. J. ; _ FILED: January 17, 1967

Is the Act of June 15, 1965, which amends Article III,

. Section 1361, of the Act of March 10, 1949,? known as the

“Public School Code of 1959,” Constitutional under both

. the Constitution of the United States and the Constitution

of Pennsylvania? Each of the present actions sought to, pro-

hibit the defendant school district’s expenditure of public

- funds for: the. purpose of furnishing free transportation to

pupils attending Catholic and other nonprofit sect be

“schools, as authorized by the aforesaid amending Act of 1965.

‘Prior to the aforesaid 1965 amendment to ‘the Public

School Code, Section 1361 of the Public School Code pro-:

_ vided only that “the Board of School Directors in any school. -

' district may, out of the funds of the district, provide for the .

. free seca of any resident _pupil to and from the

_ public schools’ . .

~ The Act of 1965 sanaialy provides: «

“The General Assembly of the Commonwealth ¢ of Penn-

sylvania hereby enacts as follows:

“Section 1.

“Section 1361, act of March 10, 1949 (P.L. 30), known

Pe the ‘Publie School Code of 1949,’ is amended. to read:

“Section 1361. When provided ...

- 1—Act No. 91, PLL. ........, 24 PS. §13-1361..

2—P.L. 30, 24 P.S. §13-1361. 3 |

3—Italics throughout, ours, — where enderlinings appear ‘fe a

. —.

—38a—

Opinion — Supreme Court of Pa.

“The board of school directors in any school district

may, out of the funds of the district, provide for the. free’

transportation‘ of any resident pupil to and from the public

schools and to and from any points in the Commonwealth

in order to provide tours for any purpose connected with the

educational pursuits of the pupils. When provision is made

by a board of school directors for the transportation of resi-

dent pupils to and from the public schools, the board of

- school directors shall also make provision for the free trans-

_ portation® of pupils who regularly attend nonpublic elemen-.

tary arid high schools not operated for profit. Such transpor-

tation provided for pupils attending nonpublic elementary -

and high schools not operated for profit shall be over. estab-

lished public school bus routes. - Such pupils shall be trans-

ported to and from the point or points on such routes nearest |

or most convenient to the school which such pupils attend...

In the Amendatory Act of 1965 the Legislature in the

clearest language directed boards of school directors (in any

school districts in this Commonwealth) to use (under cer-

. tain circumstances) public funds for the free transportation

of pupils who regularly attend non-public elementary and —

ete ee eee

4—by sided conveyances, private coriveyances or eletntc allways or

other,common carriers. Section 1362.

5—See also, “Section 2. "Vie iaieiehdiieises ‘webby ‘ect shall not

_* ‘be so construed as to limit or reduce in any way the payments

now made by the Commonwealth to various school districts to

help defray the cost of pupils and the additional

"costs incurred by the board of school directors in furnishing trans-

portation under said amendments shall be included in the amounts

ee er eeenener aay: We vereivel tree: ti Ciatiesl-

ee |

Opinion — Supreme Court of :Pa.

: high schools which are not operated for profit’ whenever

provision is. made by such a board for the cep oes of

_ resident pupils to and from the- public schools.

The essential averments in the complaints before us are he

‘that pursuant to the Amending Act, a school district has

agreed to-supply, or has appropriated tax money for the -

purpose of supplying, free transportation to pupils attending -

. nonprofit schools outside the public school system, In the

Worrell (Delaware County) action it is averred that such

transportation. will be supplied to pupils attending “sec-'

____tarian” schools. In the Rhoads (Montgomery County) case,

plaintiffs particularize. They aver that in the Abington

Township School District there are five nonprofit schools

" owned and operated by the Roman Catholic Church, that

these schools are sectarian and are parts of an independent

school system maintained by ‘such Church for the teaching

. and propagation of its particular faith, and that the furnish- ~

ing of transportation to parochial school children is a neces-

_sary function in the operation of such schools, = ===

Plaintiffs contend that the furnishing of free transpor-

tation. by school districts to children attending sectarian

schools constitutes a use of public funds to.or is clearly for

the benefit of sectarian schools and therefore violates (1) the

First Amendment to the Federal Constitution and also (2) (a)

Article I, Section 3, and (b) Article III, Section 18, and (c)

Article X, Section 2, of the Constitution of Pennsylvania.

They further contend that the — purpose of the Act,

| 6—with provisions and tnttations not hese pertinent:

;

‘ei: f on

" Gpathinane Supreme Court of pe

- viz., protection of the health, safety and-welfare’ of sili e De

‘attending sectarian and nonprivate schools, is unjustly dis-

: criminatory and is merely a sham anda subterfuge for finan-

' gial ‘aid to sectarian schools. For example, so far as health

_ and safety are concerned, (1)°young children attending pri- -

vate schools are unprovided for, and (2) young children |

attending public schools and sectarian schools (a) who do

. not live near an established bus route or (b) who live within

a mile and a half of the public or sectarian school they at-

tend, are unprovided for, and (3) young children who have see a

7—The Pennsylvania Secretary of Public Welfare, Mr, Arlin M.

Adams, testifying at the public hearings before the Senate Educa-

tion Committee, said: “. . . school bus transportation clearly in-

é volves the safety and health of our childrert The busing of ©

children is for their protection against hazards of the road-

ways and of traffic, against dangers occasioned by exposure to

. ° weather, against evils of child molestation. . In 1963, there were—

_ 2.3 deaths per .100,000,000 miles, in cars, as compared with .2

death, per 100,000,000 miles, in school buses. With respect to

injuries, a person is five times as safe in a school bus as in 4 car.

‘With respect to death, a person is ten times as safe in a school bus

- as in a car.” However, strange to say, the Act did not require

transportation by a bus, although all the parties in their briefs _

discuss the issues on the basis that the transportation will be by

bussing. -Moreover, neither Mr. Adams’ testimony upon which

the majority Opinion relies, nor the State of the Commonwealth

Message delivered by the Governor of Pennsylvania (William W.

Scranton) to the General Assembly, January 5, 1965, which

recommended legislation to provide free bus transportation for

children attending public and non-public schools in order to pro-

tect the health and safety of such children, upon which the Com-

_monwealth and other parties rely, is admissible. Bowers v.

Pennsylvania Labor Relations Board, 402 Pa. 542, 557-558, 167.

A. 2d 480; Henderson Estate, 395 Pa. 215, 224, 149 A. 2d 892;

National Transit Co. v. woke ie a muetacaam

~ Opinion _ Supreme Court of Pa.

o cross hazardous city streets near -their oidicial in a large .

city are unprotected and unprovided for. .

The principal defense taised by the ‘school districts and

if also by’ the Commonwealth is” that the “sole purpose and

effect” of the ]965 Amendatory Act is to promote the safety,

health and welfare of children attending nonpublic, nonprofit

schools in the same manner as the safety, health and welfare _

of children presently attending public Schools are promoted,

and _a_ similar -protection oy children . attending private

schools is unnecessary and irrelevant.

The Commonwealth further contends that the fact that

the Act is\part of the Public School Code is of no significance,

and the public policy of the Commonwealth has utilized the

Public School Code and funds of the school districts as the ~

particular instrument and means for carrying on.a wide

___ variety of welfare, health and safety activities ‘some of which

have no realistic connection to the support of public schools.

Nearly all of the important facts and factors are agreed

upon; the parties differ widely and vigorously upon (1) in-

” ferences and conclusions deduced or drawn from the facts,

_.and (2) the correct meaning and interpretation of the per- _

tinent provisions of the Federal and State Constitutions, and _

(3) the decisions of the Supreme Court of the United States.

“Does the Act violate the Federal Constitution?

: We start with the fundamental proposition that every

Act is presumed to be both valid and Constitutional. United

States v. National Dairy Corporation, 372 U.S.'29)32; Mad-.

den v. Kentucky, 309 U.S. 83, 88; Highland v. Russell Car —

and Snow Plow Co., 279 U.S. 253, 262; Home Telephone Co.

__v. Los Angeles, 211-U.S. 265, 281; Sweet v. Rechel, 159 U.S.

380. Cf. also Goldblatt v. ‘Hempstead, 369 U.S. 590, 595-

oe

.

Opinion — Supreme Court of es

. 596; United States v. Ciisione' Products Co., 304 US. 144,

= 152-154, —

The First libel to ) the Constitution of the United’

States peers provides: :

“Coingisin shall make no ‘hie respecting an establish

AN ment of religion, oe pepetiting the free exercise thereof; . .

Although this Pi in the First (ES ise clearly

constitutes a “religious” restraint only on Congress, recent |

decisions of the Supreme Court hold that the. Fourteenth

Amendment has made the First Amendment a restraint upon

(7

the States as well as upon Congress. School District of .

' Abington Township v. Schempp, 374 U.S. 203, and case¥

- cited therein; Murdock v. Pennsylvania, 319 US. 105, 108;

- Everson v. Board of Education, 330 U.S. 1; Illinois ex rel.

_ McCollum v. Board of Education, 333 U.S. 203 210-211;

Zorach: v. Clauson, 343 U.S. 306; McGowan v. Maryland,

366 U.S. 420; Toreaso v. Watkins, 367 U.S. 488; and Engel

v. Vitale, 370 U.S. 421.

The short 15-word “Establishment” and “Free Exer-

cise” ‘clause of the First Amendment has generated many

different and ‘widely divergent views. To state the law in

- broad terms and generali easy, to particularize and to.

apply it is often: t. . Because of the great change in the

- life and habits and thoughts of the American people, and

indeed of education itself, from the days of our “Framing -

Fathers,” and because the questions and issues are often very

close and overlapping or conflicting and at times filled with

shee tampa laa :

~

sf

‘$Me, Jusice BRENNAN, in a

Opinion — Supreme Court of Pa.

a)

is often thin and shadowy or elusive* betwee the Constitu-

. + tionally. permissible and the-Constitutionall ly

impermissible.

; So far asthe “Establishment Clause” is: concerned, I.

believe the present 'cases are ruled by the leading case of

Everson v. Board of Education, 330 U.S.,° supra, where the

facts and issues are strikingly similar. A New Jersey statute _

authorized district boards of education to make contracts for *

the transportation of children to and from schools other than

_ private schools operated for profit. : A board of education by

resolution authorized the reimbursement of parents for fares

_ paid for the transportation by public carrier of chilllren at-

tending public and Catholic schools. The Catholic schools”

‘operated under the superintendency of a Catholic priest and,

in addition to secular education, gave religious instruction in

. .. the Catholic Faith. A district taxpayer challenged the valid-'

_ ity under the Federal Constitution of the statute and. resolu- *

Opinion, in Abington

School District v. Schempp, 374 U.S., supra, said (pages 230, 231,

245): “The Court’s historic'duty to expound the meaning of the

Constitution has encountered few issues more intricate [or more

filled with emotion] or more demanding than that of the relation-

ship between religion and the public schools . . . The fact is that

the line which separates the secular from the sectarian in American

_; ‘life is elusive. The difficulty of defining the boundary with pre-

‘cision inheres in a paradox central to our scheme of liberty. .

_ The case-(US. v. Ballard, 322 U.S. 78, 95] shows how elusivie ts

fachggle repeat iarkaanp usr pms agessaoe at sg

trality, while manifesting no official hostility toward religion . .

: 9—Mr. Justice RUTLEDGE filed a lengthy dissenting Opinion in *

which three other Justices. joined. Furthermore, ‘Mr. Justice

., DOUGLAS expressly stated in Engel v. Vitale, 370 U.S. 421, that

"after further thoughtful consideration’he believed he and the rest

_ Of the majority in Everson were mistaken in their Opinion in that

Opinion — Supreme Court of Pa.

tion, so fat as they authorized reimbursement to parents for

the transportation of children attending sectarian schools.

. Without deciding whether the exclusion of reimbursement to

parents of children attending private schools operated for

profit constituted a denial of the equal protection of the law,

_ the meee Court. sustained. the semsxseoencet ante of the |

The sisaiiipic of tax-raised funds thus siithortoed

was ki a public purpose, and did not violate the due ite

clause of the Fourteenth Amendment; and

_ 2.+ The statute and resolution did not violate the

- provision of the First Amendment which was made appli-

cable to the states by the Fourteenth Amendment, prohibiting —

any “law respecting an establishment of religion.”

The Court, in Everson v. Board of Renee, 330 US.,

ee ee toe 14,16, 17):

“Their decisions, [the decisions of the State Courts]

” however, show the difficulty in drawing the line between tax _

_ legislation which provides funds for the welfare of the gen-

eral public and that which is designed to support institutions

— teach religion-~

. New Jersey cannot ccinalahenily is the ‘estab-

os FAS as tow clause of the First’ Amendment contri- *

: bute tax-raised funds to the support of an institution which —

‘teaches the tenets and faith of any church. On the other .

" 10—The Court reviewed (e) the evils, the struggles and persecutions -

__--which: had been going on abroad for centuries and from time to :

-° thme in the Colonies between various religions, and religious

. faiths; and (b) the belief and reliance of our Colonists in God;

ee a 3

“Pat Amendment :

| - Opinion — Supreme Court of Pa. —

hand, other language of the amendment commands that

New Jersey cannot hamper its citizens in’ the free exercise

of their own religion. ' Consequently, it cannot exclude in-

dividual Catholics, Lutherans, Mohammedans,* Baptists, . :

Jews, Methodists, Non-believers, Presbyterians, or the mem-

bers of any other faith, because of their faith, or lack of it, _

‘from receiving -the benefits of public welfare legislation . .

“Measured by these standards, we cannot say that the

.First Amendment prohibits New Jersey. from spending tax-

raised funds to pay the bus fares of parochial school pupils

as a part of a general program under which it pays the fares

oy of pupils attending public and other schools.”

Plaintiffs present plausible arguments to o support their :

tions of unconstitutionality and argue, inter alia, (1)

thet Everson, 330 U.S., supra, is no longer the law because _ |

three of the fivé majority Justices in that case have died'and

: another one has changed his views,"' end (2) subsequent

decisions of the Supreme Court have abandoned or changed

some of the reasoning or statements upon which the majority

: _relied in that case. See and compare, Abington School Dist.

v. Schempp, 374 U.S.. supra; McGowan v. Maryland, 366

U.S. 420; Engel v. Vitale, 370 U.S. 421, 442; Sherbert v. -

Verner, 374 U.S, 398, 410. Lote tee

In order to determine the .contentions ‘and the: issues 3

raised by the parties, we shall briefly analyze and. review -

the subsequent cases which have been relied upon zm one

or more of the Parties.

. ik ccna tee Coit Aabtin Mees i ai cai

_ which the dissenting Justices of the Supreme Court cleerly em-

phasize in Everson v. Board of Education, 330 US., supra, that

some of the analogies employed by the majority of the Supreme _

Court to support its opinion are neither relevant nor convincing.

° ‘ ; ,

Opinion — Supreme Court of Pa.

“The Supreme ‘Court in Illinois ex rel. “McCollum v.

Board of Education, 333 U.S. 203, struck down as violative

of the First Amendment the teaching of religion in public

school. buildings by outside teachers supplied by various —

denominations under a “released time for children” arrange-

-ment between them and the Board of Education. Under

this arrangement, the Board released the public school chil- —

_ dren for limited periods and allowed the use of its school

buildings for the teaching of various denominational beliefs .

by outside religious teachers.

-: On the other hand the Supreme Court in Zorach v.

Clauson, 343 U.S. 306, held Constitutional a “released time” ©

program for the religious education of public school children

off the premises of such schools, in which for brief periods ~

the schools released children whose parents desired them to

receive denominational education i in their own Churches and

Sunday Schools. —

In Engel et al. v. Vitale, et al., 370 U.S. 421, 422, the

Supreme Court declaréd U picnsiiiiionel a directive by the

Board of Education to cause the following pra: :r to. be said

aloud by each class in the presence of a teacher at the begin-

ning of each school day, although no student was compelled

‘to attend or to join in the prayer over his or his parent’s

objection:

“Almighty God, we acknowledge our dependence

upon Thee, and we beg Thy blessings upon us,

_ our parents, our teachers and our Country.”

. This decision to me is incomprehensible, Cf.. also, IIli-

nois ex rel. McCollum v. Board of Education, 333 U.S., supra.

| On the other hand, Everson v. Board of Education has —

been: followed. and affirmed in McGowan v. ——- 366

¢

Opinion — Supreme Court of Pa.

USS., supra, and in Abington School District v.-Schempp,

_ + 314USS,, supra. In. McGowan v. Maryland, supra, where

a divided Court in Opinions.covering 162 pages analyzed

and reviewed prior decisions and after quoting with approval

on pages 443-444) Everson v. Board of Education, held -

Constitutional a Maryland law which generally prohibited .

the sale on Sunday of all merchandise, although*it contained

many specific exceptions and limited the act to retailers in =

. one county. The Court held, inter alia, that the purpose and

__ effect of the statute was for the public welfare, i.e., not to aid

religion, but to set aside a day of rest and recreation” for.

the public at large. | 7 os

In Abington School District v. Schempp, 374 U.S. supra,

the Court said (pages 205-222): Re

| “Once again we are called upon to consider the scope .

of the provision of the First Amendment to the United States

Constitution which declares that ‘Congress shall make no

law respecting an establishment of religion or prohibiting

_ the free exercise thereof. . . .’ The companion cases present

the issues in the context of state action requiring that schools

begin each day with readings from the Bible. While

the basic questions under slightly different factual situations,

the cases permit of joint treatment. In light of the history

of the First Amendment and of our cases interpreting and ..

applying its requirements, we hold that the practices at

issue and the laws requiring them are unconstitutional under

the Establishment Clause, as applied to the states :hrough

__ the Fourteenth Amendment. : |

_ 12—The Court on page 437 referred to the long and intensive struggle

for religious freedom in America as set forth in the Opinions in

_ Everson v. Board of Education, 330 U.S., supra, and the historical

position of Sunday closing laws as set forth in the same case.

&

. —48a—

Opinion — Supreme Court of Pa.

: . The Commonwealth of Pennsylvania by law .

requires that ‘At least ten verses from the Holy Bible shall

be read, without comment, at the opening of each public

school on each school day. Any child shall be excused from

such Bible reading, or attending such Bible reading, upon

‘the written request of his parent or guardian.’ —

. Participation in the opening exercises, as directed

by the statute is vqluntary. . . ‘°

_ “It is true that religion Sing been closely identified with

our history and gov ent. As we said in Engel v. Vitale,

* . 370 USS. 421, 434 (1962), ‘The history of man is insepar-

able from the history of religion. . .. The fact that the

Founding Fathers believed devotedly.that there was a God

and that the unalienable rights of man were rooted in Him

is clearly evidenced in their writings, from’ the Mayflower

Compact to the Constitution itself. background is evi-

denced today in our public life through the continuance in

our oaths of office from the Presidency to the Alderman of

the final supplication, ‘So help me God.’ Likewise each

House of the Congress provides through its Chaplain an

opening prayer, and the sessions of this Court are declared

open by the crier in a short ceremony, the final phrase of |

which ‘invokes the grace of God." Again, there are such

13—We may add that every daily session of the State Siipreme Court

and of every State Court in Pennsylvariia is operied with a very

brief ceremony which ends with the words “God save the Com:

monwealth and this Honorable Court.” President Washington,

President Lincoln, President Cleveland, President Wilson, Presi- .

dent. Roosevelt, President Eisenhower, President Kennedy, and

nearly-every President of the United States, have invoked in one

or.many of their speeches the aid of God. One of the lines of the

_ Star-Spangled Banner is, “Then conquer we must when our cause

_ it is just, and this be our motto ‘In God Is Our Trust’.” Since

—49a—

Opinion — Supreme Court of Pa..

manifestations in our military _—e whats those of our ..

citizens who are under the restrictions of military service

wish to engage in voluntary worship. . Indeed, only last

year an official survey. of the country indicated that 64% of

- our people have church membership, Bureau of Census, U.S.

Department of Commerce, Statistical Abstract of the United

States, 48: (83d ed: 1962), while less than 3% profess no

religion whatever. Id., at p. 46. It can be truly said, there-

fore, that today, as in the beginning, our national life re-

flects a religious. people who, in the words of Madison, are _

‘earnestly praying, as . . . in duty bound, that the Supreme

Lawgiver of the Rabies - guide them into every measure .

> 14 ;

which ‘may be worthy of. his. . . blessing. ...’...

“This freedom to worship a indispensable in a dines

whose people came from the four quarters of the earth and

brought with them a diversity of religious opinion. Today

_ > atithorities list 83 separate religious bodies, each with mem-

berships exceeding 50,000, existing among our people,. as

— as innumerable smaller groups .

.. [and then, most iciilidinlty, the Court said]

‘ The test may be stated as follows: what are the

purpose and the primary effect of the enactment? . If either.

is the advancement or inhibition of religion then the enact- _

1865, the words “In God we Trust” have been impressed. on our

coins and imprinted on our paper money. The Pledge of Allegi-

' ance to the Flag contains the-words “One Nation under God,

indivisible, with liberty and justice for all.”

14—Notwithstanding these and even stronger ae sentiments ex-

_ pressed by the majority in the Everson case, I believe—as do the |

dissenting justices in that case—that what the. Supreme Court

avews about our religious beliefs and liberties, its conclusions and

decisions: too often disavow,

|

/

/

/

a

Opinion — Supreme Court of Pa.

ment exceeds the scope of legislative power as circumscribed

by the Constitution. That is to say that to withstand the .

strictures of the Establishment Clause there must be secular. —

legislative purpose anda primary effect that neither advances

nor inhibits religion. Everson v. Board of Education, supra;

McGowan v. Maryland, supra, at page 442.”

~ To summarize: riotwithstanding the difficulty of recon- —

ciling all. of the aforesaid cases, I believe that Everson v.

Board of Education, 33 U.S. supra, and Abington School

District v. Schempp, 374 U. S., supra, are still the law and

' require us to hold that the Amendatory A Act of 1965 does not _

violate the First or Fourteenth Amendment of the Cate

tion of the United States.

Does the Amendatory Act of 1965 violate the Constitu-

_ tion of Pennsylvania? |

Plaintiffs contend that the 1965 Amendatory Act \ vio-

lates Article I, Section 3,‘and Article-III, Section 7 and Sec-

_ tion 18, and Article X, Section 2, of the Constitution of

Pennsylvania. _

The principle is well settled in Pennsylvania thet an

Act will be declared unconstitutional only if it “clearly, pal-

pably and plainly” violates the Constitution: Milk Con:rol

Commission. v. Battista, 413 Pa. 652, 659, 198 A. 2d 840;

Daly. v. Hemphill, 411 Pa. 263, 271, 191 A. 2d 835; Dauphin

Deposit Trust Co. v. Myers, 388 Pa. 444, 450, 130 A, 2d 686,

and Evans v. W. Norriton Twp. Mun. Auth., 370 Pa. 150,

158, 87 A. 2d 474.

_ + For many years, Collins v. Kephart, 271 Pa. 428, 117 Ad.

440, was considered the leading case in this field. In Collins -

v. Kephart, a bill in equity for an injunction was brought in

five separate taxpayers’ suits.: The Court declared Uncon-

stitutional an appropriation to the Passavant Hospital of

—dla—

Opinion — Supreme Court of Pa.

| Pittsburgh and to St. Timothy’s Memorial Hospital. and to

‘the Duquesne University of the Holy Ghost and to the Du- .

bois Hospital Association and to the Jewish Hospital Associa-

tion of Philadelphia. Each of these hospitals was a very. .

worthy charity. Each contended that it was not a denomina-

tional or sectarian institution. Each of the hospitals ad-

mitted persons without regard to their religious faith and had —___—

non-sectarian directors-and-boards composed of various de- .

nominations to conduct the hospitals and to take part in its

_ management, and each proclaimed that it was not a sec-

_ tarian or denominational institution. The Court held (a)

that Article III, Section 18," forbids State aid to all institu-

tions affiliated with a particular religious sect or denomina-

tion, or which are under the control, domination or govern-

ing influence of. any religious sect or denomination, and

therefore, (b) the appropriations, even though they had been

made without question or complaint for a period of 40 years,

were Unconstitutional. Chief Justice Moschzisker, speaking

for a unanimous Court said (pages 434-435): “. . . long per-

sistence in a breach of the Constitution neither warrants the

_- course pursued nor gives it legality: Kucker v. Sunlight, Cr

Oil Co., 230 Pa. 528, 533.

“Tt is quite apparent that the creation of the so-called

local board represents simply an effort to make the Passavant

Hospital appear as though it were not a denominational insti-

tution, and thus enable it to, obtain state aid; but that which

‘cannot be done directly the law will not permit to be ac-

complished by indirection, for such a course, when tolerated

by the courts, orily serves to bring the law into contempt.

The appropriation under attack, a in Raat been made to

- 15—Quoted hereinafter.

Q

aie

Opinion — Supreme Court of Pa.

a jiiciiatiais and denominational. institution, cannot stand

in law. (Pages 436-437) eae

7 ' . While all persons, without distinction of 1 race,

‘oe’ or » religion, are admitted to defendant hospital, yet ~

there can be no doubt that it is a sectarian institution within-

the meaning of that term as-used in the Constitution; there-

fore the. nich Mime to it fails i in law. —. 437) |

“We cannot bet see’ that the arrangement tions us is

nothing more nor less than a plan to evade the Constitution.

No doubt the plan was honestly conceived, in the belief

that it was-permissible and would prove effective; but this

‘makes it none the less a legal subterfuge. The pruning knife

of the law eliminates all such devices, and lays bare the

realities of the situation, with which we must deal; these

show the hospital named:in the appropriation act ‘to be

under the control of a well known, much respected, religious

. .order, and the state’s money cannot be permitted to go

through the agency of the hospital association to this sec-

tarian institution, since it falls within the class to which that

character of recognition is forbidden by the Constitution. -

: ~~ 439-440) |

_. Those who adopted te restriction seman appro-

ey money to sectarian institutions must change the

rule, if desired, either through an amendment to the present

Constitution or by making a new one; neither the legislature,

acting alone, nor the courts have power so to do.” (Page 441)

. “The history of the development of social. and political |

- life in America shows a set purpose to divorce, absolutely,

church and state: and: this is the real underlying explanation

of provisions like the one now before us, which on in

. : a ae

__+——~ Opinion — Supreme Court of Pa:

‘one form or another, in the constitutions of many American

commonwealths. The intent of these provisions’ was, and

therefore still is, to forbid the state from giving, either di-

rectly or indirectly, any recognition to a religious sect or

denomination, even in the fields of public charity and educa- '

tion; they in effect provide that, to serve charitable, educa-

tional or benevolent purposes, the money of the people shall

not be put under denominational control or into sectarian

hands, for administration or distribution, no matter how :

_ worthy the end.in view. (Page 432).

_ In other words, the Court held that the language, mean-

ing and intent of this provision of the Constitution was clear

and plain, and no worthy objective would be allowed to

circumvent or distort it or to give taxpayers’ money directly

or indirectly by evasion or circumvention or subterfuge to

or for the benefit of a sectarian church, hospital or charitable

_ institution, body, group, sect or denomination, even for very

benevolent or important educational purposes.

_ Collins v. Kephart has been cited several times with —

' approval, and has never been overruled or distinguished.

In Constitutional Defense League v. Waters, et al., 308

Pa. 150, 162 Atl. 216, which arose by a taxpayer’s bill in

equity seeking injunctive relief, this Court in a unanimous —

Opinion held that a charitable appropriation by the Legisla- °

ture to a sectarian hospital was Unconstitutional because

violated Article III, Section 18, of the Constitution of Penn-

sylvania. The: Court quoted with approval excerpts from

‘Collins v. Kephart, et al., 271 Pa., supra. The case is well.

: summarized in the following paragraph of the syllabus:

“Article III, section .18, of our state Constitution, for-

bids state aid to-institutions affiliated with a particular reli-

- gious sect or denomination, or which are under the control,

ad

a2

. ; e ee . ; ; : . s <

Opinion — Supreme Court of Pa.

desiteeation: or governing influence of any religious sect or

‘denomination.”

In spite of the Collins and Constitutional Defense Lea-

| _ gue .v. Waters cases, supra; and Snyder v. Newtown, 147

Conn. 374, 161 A: 2d 770,* the Commonwealth contends

that the recent case of Schade v. Allegheny County Inst. Dist.,

386 Pa: 507, 126 A. 2d 911, sustains the constitutionality of

the Amendatory Act of 1965. Schade is clearly distinguish-

able on its facts. ‘That case correctly decided that payments . -

by an institution district, or by any State*Agency for the

support, care’and maintenance of delinquent, neglected or

dependent children placed by the Juvenile Court in sectarian

‘or denominational homes and institutions do not violate Ar- ‘

' ticle ITI, Section 18, of the Pennsylvania Constitution nor the

due process clause of the Fourteenth Amendnient. ‘The

Court pertinently said (pages 510-512): .

The Court pertinently said (pages 510-512):

“It was the plaintiffs’ contention below, which the ap- _

pellant renews here, that the payments made by the Instita-

tion District to the named denominational and sectarian

© —In the Snyder case, thé highest Court in Connecticut held ‘that a

statute which authorized the town to transport at public expense

children to ‘non-profit ptivate schools did not violate the Federal:

or the State Constitutional provisions respecting establishment of

" religion, but that insofar as it purported to make available for the

transportation of pupils attending non-profit private schools —

® money derived from school funds, it was unconstitutional under

_ the State Constitution, in that money had been inviolably appro-

priated, to the support and encouragement of public or common

schools. On appeal to the Supreme Court of the United States,

the Court handed down the following Opinion “Per Curiam”:

“The motion to dismiss is granted and the appeal is dismissed for

aris eee ama amie :

—5ia—

_ Opinion — Supreme Court of Pa.

institutions for the board, care and maintenance of de- .

pendent and neglected children committed thereto by the

Juvenile Court of Allegheny County violated Article III,

Section 18 of the Pennsylvania Constitution which provides -

that ‘No appropriations shall be made for charitable, educa-

tional or benevolent purposes to any person or community

nor to any denominational and sectarian institution, corpora-

tion or association.’ The appellant also contends that such

payments violate the due process clause of the Fourteenth

Amendment of the Federal Constitution ‘by. effecting a de-

privation of the liberty guaranteed by the First Amendment

' through the prohibition respecting ‘an establishment of reli-

gion.’ This question was not raised in the court below and

; got into the case solely by being dealt with by the dissenting

chancellor upon the entry of the final decree by the court

en banc. ee ) :

“The opinion for the court [below] is based principally

on the conclusion that the inhibition of Article III, Section 18

of the Constitution is directed solely against appropriations

_ of State funds by the legislature and does not apply toa —

_ governmental agency such as an Institution District. With

that, we are unable to agree. .. . It would be strange, indeed,

if the legislature by creating a body politic or corporate to

exercise a legislative function could do indirectly what it may

not do directly. It seems too plain for cavil that, if a mere

creature of the legislature can do what the ‘legislature itself

‘is constitutionally prohibited from doing, the carefully de-

signed prohibition of Section 18 of Article III could readily

_be rendered useless. Such a result is not to be sanctioned: S

Collins v. Kephart, 271: Pa. 428, 439, 117 A. 440. |

“We, therefore, choose to bottom our decision on the

ground that payments made by the Institution District for

—

sr

* Opinion — Supreme Court of Pa.

the support and maintenance of neglected or deenileas:

children, who are under the jurisdiction and control of the

Juvenile Court, are not appropriations” within the meaning

’ of that term as employed in Section 18 of Article III...

“The cost of the maintenancéof neglected children

either by the State or the County is neither a charity. nor a

benevolence, but a governmental duty [irrespectivé of the

.. religion of a neglected child]. All the plaintiffs proved was

*

. that the monies received by the defendant.institutions were —

- in-partial reimbursement for the cost of room and board of

such minors” . . . A considerable part of this money is re-

_ couped by the Tevenile Court from the parents of these minor

wards. The balance of the funds so expended are, in legal

effect, payments to the.child,—not the institution supporting _

and maintaining him or her. [See Cochran v. Board of

Education, 281 U.S. 370, 374-375]. . OF

- The Court then added by way of dictum (page 512-513):

“The appellant’s further contention that such payments . .

by the Institution District are in violation of the due pro-

cess clause of the Fourteenth Amendment is equally un-—

$6-tu sabes, be snnesilened: teat appropriations can be made only

from revenue obtained from taxes or borrowing.

i 17—Moreover, it is a matter of common knowledge that places for the

,, Sommalioment of negiected chides are both ineufiicient i: number

and in many ways inadequate. —

eee 18—In Cochran, the Court held that an appropriation by the State of

money derived from taxation to the supplying of school books free

for school: children is not objectionable under the - Fourteenth

Amendment ‘as a taking of private property for private purposes

- where the books furnished for private schools ‘are not granted to

the schools themselves but only to or for the use of the children, -

and are the same as those furnished for public schools and pri--

vate schools alike, and are not religious or sectarian in character.

Ba

Opinion — Supreme Court of Pa. ~

_ meritorious. Inasmuch as this point was not raised in the -

' court below nor there passed upon by the majority, we are

not required to consider it here: Sherwood v. Elgart, 383 Pa.

110,.115, 117 A. 2d 899. We shall, however, point out the

fallacy of thie appellant’s argument. ~* ;

“As it has been held that the concept of liberty, as used

in the due process clause of, the Fourteenth Amendment, .

secures to the individual as against state action the same

rights as are guaranteed against:congressional action’ by the -

First Amendment (Cantwell v. Connecticut, 310 U.S. 296,

- 303; Murdock v. Pennsylvania, 319 U.S, ‘105, 108; Everson

_ v. Board of Education, 330 U.S. 1, 15; and McCollum v.

Board of Education, 333 U.S. 203, 211), the appellant argues

that the Institution District’s payments to the denominatiorial ,

- or sectarian defendants tend toward governmental ‘establish- -

ment of religion’ and, consequently, are violative of the Four-

teenth Amendment. . . . The Supreme Court has, in principle;

settled it adversely to the appellants position. See Everson

v. Board of Education, supra, where it was held thata State’s.

use of public tax funds for the transportation of pupils to

and from sectarian schools did not serve to promote the

‘. establishment of religion.”

We approve the decision in Schade, but 1 not that part of

its language which conflicts with and is irreconcilable with

_ the Courts decision in Collins: v. Kephart, 271 Pa., supra, ©

‘. which it cites with approval.

. : Furthermore, we must consider not only Article lil -Sgo one ne

tion 81, but also Article III, Section 7, and Article'X,Sectiéns = Ss

. ‘land 2, of our Constitution, which were not involved or dis- ss

cussed.in the Schade case. All of these Articles must be con-

sidered together in discussing and determining the issues in ~

tte case, ie., whether the Amendatory Act of 1965, which |

: a4 :

al

5 8a—

. Opinion — Supreme Court. of Pa.

amends the Public School Code; violates these or any other

‘provisions of the Constitution of Pennsylvania,

| - Article ITI, Section 7, of the Constitution of Pennsylvania

prohibits thé General Assembly froni passing any local or

special law Sap lating the affairs . . . of school districts, [or] .

: — to -~: v individual any special or exclusive or -

WR ee | at

Article X, Section 1, provides: “The General Assembly

shall provide for the maintenance and support of a thorough

and efficient system of public schools, wherein all the chil-

dren of this Commonwealth above the age of six years may

. be educated, .

| Article X, Poe 2, provides as Sailewe:

“fiducation. Public Schools Provided for . .

“Sectarian diliosti Not to Receive Public School Money.

Lo “Section 2.. No money raised rm the support of the

Commonwealth shall be appropriated to or used for the sup-

port of any sectarian school.”

3 It will be instantly observed that the language of the

Pennsylvania Constitution differs greatly from the pertinent

language of the First Amendment of the Constitution of the

- United States, which pertinently merely prohibits “any law

respecting an establishment of religion.” The Constitution

of Pennsylvania clearly. and expressly mandates a public

school system for Pennsylvania school children, and (a)

clearly and expressly prohibits appropriations to or use of

public money for the support of any sectarian school and (b) ‘

| — .

Opinion — Supreme Court of Pa.

in Article HI, Section 18, provides::“No sepriegileiten shall

be made for charitable, edteational or benevolent purposes

to any person of community nor to any denominational or .

sectarian institution . . .”"” ‘Considering all the aforesaid —

Articles together, as of course we should, it is crystal clear

that no’ money raised by the Commonwealth or by any of

its agencies or by any governmental institution can be used

_ for the support of any sectarian school, or used to grant any

special privilege to the children who attend it, no matter

how worthy and benevolent that sectarian school or institu-.

tion is, and no matter how beneficial these grants to the

children or their parents would be.

The raising of money by taxes or by Siieaiiit or the

expenditure of public funds to provide transportation not for

all school children in Pennsylvania byt only for children

who attend public or sectarian schools which are not oper-

ated for profit, clearly violates the spirit,-the meaning and

the intent of the aforesaid provisions of the Pennsylvania

Constitution, and, we believe, the language thereof. These

Constitutional provisions are of such tremendous importance

to all. the people of Pennsylvania that no circumvention,

dilution or distortion should be allowed to evade or nullify _

or make a mockery of them. The 1965 Amendatory Act

undoubtedly benefits healthwise and safetywise a .restricted

class of school children, as well as sectarian schools./ If it is

both reasonable and necessary to protect the safety and

health of public school children and sectarian school children —

by the State’s use of public or institutional tax funds for |

their transportation to school, how can it be reasonable and

legal and Constitutional, and not arbitrary and discrimina- |

19—With certain. provisions, grants and exceptions not here pertinent.

er Opinion — Supreme Court of Pa.”

tory, to paras private school children from the benefits of

these health and safety measures”

The title of the 1965 Act states that its purpose is to

“provide for the health, welfare and safety of the children —

of the Commonwealth”, and yet in the very same breath ex-

cludes those children who attend schools which are operated

_for profit. The fact that the so-called School Bussing law or

its 1965 amendment-does not provide for the transportation

of. all school children, regardless of the kind of school they

attend, demonstrates that the real “purposdland the primary 5

effect” of the Act of 1965 was to benefit and protect the

health and safety of only sectarian school children (as well

as, indirectly, their schools), rather than to provide for and

protect the health and safety of all the iat children of

Pennsylvania.

_ To express it in other ete: if this 1965 Act is, as its

proponents contend, really for the protection of the health’

and safety—not of all school children but only—of sectarian

school children, by providing public funds for the protection

of the health and safety of this special class of school chil-

dren, i.e., parochial or. sectarian school children, then it is

20—We further note that under Section 1362 of the Public School

Code, free transportation of resident pupils of public and sectarian

schools may be provided out of the funds of the school district,

but such transportation (1) shall be over established public school

. .bus routes and not nearer a school than a mile and a half, and

(2) may be. furnished by using either school conveyances, private

conveyances, or electric railways or other common carriers. What

happens or may happen to-the safety and. health of all those

school children (1) (a) who live far from ‘an established bus

' route station, or (b) within ‘a mile and a half of the public or

sectarian school they attend; and (2) those children who attend

a private school?

to —_la—

- Opinion — Supreme’ Court of ‘Pa.

unreasonable, arbitrary and invidiously discriminatory, and

such an obviously rg hae to circumvent and nullify

the Constitution as to be clearly and beyond any. doubt

Unconstitutional. oct patie

Legislative Classifications

We may .add that there is another barrier which the

majority does not even discuss. Legislative classifications .

are permitted in Pennsylvania and are Constitutional, pro-_

vided they are not unreasonable and arbitrary and have a

reasonable basis for the distinctions and classifications they

make. We all agree that the wisdom or lack of wisdom of

_ an‘Act is a matter ‘for the Legislature and not for the Courts,

and that classifications and distinctions will be sustained pro-

vided they are “reasonable and founded upon a genuine dis-

. tinction.” . wae

- The law is well expressed in Kurtz v. Pittsburgh, et al.,

346 Pa. 362, 31 A. 2d 257, where the Court held unconstitu-

tional; as being in plain controvention of Article III, Section

7, the Act of June 7, 1917, as amended. That Act provided

for the payment to dependent wives of public employees in

the armed forces of the United States of a specified portion

of their salary. In a lengthy 24-page Opinion, the Court

analyzed and reviewed many of the cases involving the

question of a violation of Article III, Section 7, of the Penn-

sylvania Constitution,” and pertinently said (Pp. 367, 368;

. 369): - : g ay

21—For a more recent analysis and review of many decisions of this

‘Court and of the Supreme Court of the United States, see the dis-

senting Opinion in Bargain City U.S.A. v. Dilworth, 407 Pa.

135-142. ‘ tae

—b2a— |

Opinion — Supreme Court of Pa.

““Class legislation has frequently been declared void by

this Court, and. what is” class legislation has been defined

and illustrated in a long line of decisions. In Penna. Co. for.

- Insurances on Lives and Granting Annuities et al., Appel-

lants, v. Scott, Prothonotary, et al., 329 Pa. 534, 198 A. 115,

this Court in an Opinion by Mr. Justice LINN quoted what _

was said in Laplacca et ux v. Phila. Rapid Transit Co., 265

Pa, 304, 108 A. 612, as follows: ‘The-basis for classification

must be reasonable and proper and founded upon a real, and

_not merely artificial, distinction between the members of the

class and the general public, and based upon “a necessity

springing from manifest peculiarities, clearly distinguishing

those of one class from each of the other classes, and im-

peratively demanding legislation for each class, separately,

that would be useless and detrimental to the others”.”

“. _. In Ayars’ Appeal, 122 Pa. 266, 16 A. 356, Justice

‘ STERRETT said: “The underlying principle of all the cases

is that classification . . . is essentially unconstitutional, unless .

a necessity therefor exists [a necessity springing from mani-

fest peculiarities, clearly distinguishing those of one class

- from each of the other classes and imperatively demanding

legislation for each. class separately, that. would be useless” _

and detrimental to the others] . This principle was ap-

" plied in Commonwealth ex rel. Brown v. Gumbert et al, 256 .

Pa. 531 [534], 100 A: 990. Although the legislation under

attack there was ‘humanitarian’, we said that a ‘positive con-

stitutional requirement’ cannot be aie ea because of an ~

act’s Lommervig aim.’

“seomanayes selection can never be justified PY calling

it classifation

22—lItalics in Kurtz Opinion:

-—638a—

Opinion — Supreme Court of Pa.

See also Davis, et al. v. Sulcowe, 81 Dauphin 72 (1963),

wherein it was held that there was no basis for distinguish-

ing between nonprofit nursing homes and proprietary nurs-

ing homes for minimum wage requirement purposes.

Because the 1965 Amendatory Act has such an impor-

. tant and beneficial purpose and objective, it is with great

~\_regret that I feel I must dissent and hold that the Amenda-

_. ,tory Act of 1965, with its arbitrary and unreasonable dis- -

tinctions and classifications—which do not imperatively de-

mand safety and health protection for sectarian school chil-

dren which would be useless and detrimental to private school

_ children—is clearly and plainly unconstitutional.

Opinion — Supreme Court of Pa.

DISSENTING OPINION

4 es FILED: January 17, 1967

The act in question violates, in my opinion, both the

Pennsylvania Constitution and the Federal Constitution, and

is further void for vagueness and incompleteness. Moreover, _

it is premised upon the subterfuge of the “child benefit”

theory, and the present case comes before us with a record .

insufficient to substantiate the eagumante made in support

of the statute. ,

Article 10, sections 1 pe 2 of the Pennsylvania Consti-

_tution provide:

"gj. Public school system .-

“The General Assembly shall provide for the main- —

tenance and support of a thorough and efficient

system of public schools, wherein all the children

of this Commonwealth above the age of six years.

may be educated, and shall appropriate at least one

million dollars each year for that purpose.

Ҥ2. Diversion of school moneys to sectarian schools

“No money raised for the support of the public

schools of the Commonwealth shall be appropri-

ated to or used for the support of any sectarian

school. 39

a Section 1 is a mandate to the estsdotene to malaiele and

support a system of public schools. Section 2 is a prohibition

-- against the diversion of public school tax moneys to or for

the’ support of sectarian schools. As I view the matter, if a

society which tends to increase the size of schools and to ~

erect them ever further from the homes of the students, the

—65a— ,

Opinion — Supreme Court of Pa.

provision of transportation to and from school has become

an integral function of the educational system and is a direct

aid thereto. Accordingly, where the school system is sec-

tarian, the provision of tax supported transportation for the

purpose of affording a daily pilgrimage to a- place offering

religious training is an appropriation to a sectarian institu-

tion in violation of Article 10, section 2 of the Constitution

of this Commonwealth. of

Regarding the First Amendment arguments, I recognize

the apparent binding effect of Everson v, Board of Education,

330 U.S. 1 (1947). However, I believe that certain more

recent statements of the Supreme Court have to a great ex-

_ tent diminished the force and impact formerly enjoyed by

Everson. In Illinois ex rel McCollum v. Board of Education,

333 U.S. 203 (1947), the Court held that a “released time” _

arrangement whereby pupils were permitted to receive reli-

gious instruction in public school buildings during regular

school hours was in violation of the First Amendment princi- __

ple of separation of church and state; in Torasco v. Watkins,

367 U.S.:488 (1961), the Court held that the requirement

_ of the Maryland Constitution that every office holder must

' declare a belief in the existence of God violated the First

Amendment as an invasion of the individual’s freedom of

belief and religion; in Engel v. Vitale, 370 U.S: 421 (1962),

the Court held that the use of the public school system to

encourage recitation of a brief non-denominational prayer

_ was inconsistent with the establishment clause; and in Abing-

ton School District v. Schempp, 374 U.S. 203 (1963), the

Court held that school exercises requiring the reading of Bible

verses or. the Lord’s Prayer violated the establishment clause.

Especially significant is the fact’ that one of the critics of

Everson is Justice Douglas, who was among the five majority

a :

Opinion — Supreme Court of: Pa. id

justices in Everson but who in Engel stated in a concurring

opinion that as he reconsidered the decision in Everson, it

was inconsistent with the First Amendment and that the

dissenting opinion of Justice Rutledge in Everson was better

law, I should like the United States Supreme Court finally #

to decide this case so that they may reconsider the Everson

-. doctrine. Accordingly, I would appoint a master in each

case with instructions that a record be made upon which both |

this Court and the United States Supreme Court i more

3 meaningfully reach 4 decision.

The act in. question is further void sein as it is

vague and incomplete. e statute authorizes busing “over

established public school bts‘routes” and requires nonpublic

school pupils to be transported to and from “the point or

points on such routes nearest or most convenient to the

[nonpublic] school which such pupils attend.” The Attor- —

ney General, apparently realizing that as enacted the statute

. remained too.vague to be implemented, outlined in a-letter

to the Acting Superintendent of Public Instruction several

guidelines for the implementation of the act. In it the Attor-

ney General declared that a school board mayrmake devia- . .

tions from established routes, may make new routes and

re-routes, and may reestablish routes in order to accommo-_

- date nonpublic’ school children. In addition, he defined as .

part of the established public school bus route ‘any distance ©

which a‘school bus is required to travel beyond a public

school in order to complete its trip or reach its place of stor-

age. In effect, the Attorney General assumed the role of an

- overseer of the legislature and ‘rather than interpret the act, —

saw fit to write his own version simply because the statute

passed by the General Assembly was incomplete and unwork-

able. Neither the Attorney General nor the Courts may

\ setae, i

Opinion — Supreme Court of Pa.

write legislation for the General Assembly, and when that

body has failed to include certain essential requirements in

an enactment, neither the executive nor the judiciary may

under the guise of interpretation add the missing require-

ments. Altieri v. Allentown Officers’ and Employees Retire-

ment Board, 368 Pa. 176, 81 A. 2d 884 (1951); Akins v.

York Officers’ and Employees’ Retirement Board, 368 Pa.

182, 81 A.- 2d 883..(1951); Note, The Void-for-Vagueness.

Doctrine, 109 U: Pa. L. Rev. 67 (1960).

Finally, on the record (or lack of one) before us, I am

unable to conclude that this-statute may be sustained by

virtue of the “child benefit” theory. It is obvious that that

theory is merely a subterfuge by which its supporters ‘justify

the enactment in question. For one thing, the act does not

provide, free transportation ‘for all pupils. It excludes from

the enjoyment of its benefits students who attend private

schools operated for profit. I can see no basis for omission of

"these children if the statute was truly enacted for the safety’

and welfare of the children of our Commonwealth. The

* reason is clear, however,. becausé. an examination of the

statute indicates that safety was not-the predominant motive

for its passage. The act, .as. passed, will actually increase -

is the danger to children who formerly were transported ‘from

their homes to the private or parochial schools in privately

operated buses. ‘The act provides for transportation of such

pupils to and from points on established school bus routes

“nearest or most convenient to the [nonpublic] school .

This statute completely ignores the additional hazards that

imperil these children,- and cannot be sustained by reference

to a makeshift “child welfare” theory. The only way this

: provision can truly serve the welfare of the children of the

; Commonwealth i is that it be implemented by providing to the -

eel

/ ae

Opinion — Supreme Court of Pa. |

honpublic school children the same service accorded to those

that attend public school. That means taking them to and

bringing them from their schools and by so doing, clearly

violating the Pennsylvania and Federal Constitution. As I

have indicated, bus transportation has become an integral

part of the process of education and any improvement in the

transportation of pupils must be considered as an aid to the

schools. In fact, the statute in question, in addition to the

provisions herein considered, provides for free transportation-

of public school pupils for tours “connected with the educa-

. tional pursuits of the pupils.” ‘The act was passed as an aid |

to education ‘and that is all. Since it grants tax supported

benefits to sectarian educational institutions it is unconstitu-

tional. That is all there is to it. v

. I dissent.

—69a—

RECORD

/

?

_ INTHE COURT OF COMMON PLEAS OF -

DELAWARE COUNTY, PENNSYLVANIA

Berry J. Worse, Plaintiff |

sae Pe ©

* GEorcE W. Marrens, Joun C. Snyper,

Cuaiais H. Meer, Lewis M. Evans, II,

KENNETH R: MEENEN, RicHARD L. RAYMOND, °

JosePH H. Watton, Directors of Rose — | |

Tree Union School District and H. Joun |

LuMSDEN, eat of Rose Tree Union pra!

School District and a C. CAMPBELL, |

Superintendent of Rose Tree Union School

District and ConTiNeNTAL BANK AND TRUST

, Company, Treasurer of Rose Tree Union

School District, — | | dpb earle*

Defendants ah Geant

—Ta—

Record |

AMENDED COMPLAINT |

as

|. 1. Plaintiff is an individual windia at 20 Line al,

“x Upper Providence Township, Delaware County, Pennsyl-

-vania. Plaintiff and her husband, G. Richard Worrell, are"

- the owners of premises at 20 Lirie Road, Upper Providence

Township, Delaware County, Pennsylvania and, therefore,

plaintiff is wdaxpayer in the Rose Tree Union School District.

2. Defendant, Grorce W. Matrers, is an individual

residing at Castle Rock, Newtown Square, Delaware County,

Pennsylvania; defendant; Joun C. Snyper, is an individual:

residing at Darling, Delaware County, Pennsylvania; defen-

dant Cuarzes H. Meyer, is an individual residing at 9"

Springton Lake’ Road, Media, Delaware County, Pennsyl-

vania; defendant, Lewis M. Evans, III, is an iridividual resid-

ing at Springton Lake Road, Media, Delaware County, Penn-

sylvania; defendant, KENNETH R. MEENEN, is an individual

residing at Forest Lane, R. D. 1, Glen Mills, Delaware

County, Pennsylvania; defendant, RicHarp L. Raymonp, is

an individual residing at 124 Ridge Road, Media, Delaware

" County, Pennsylvania; defendant, JosePH H. Watton, is an

individual residing at 462 Old Forge Road, Media, Delaware

County, Pennsylvania. All-of the above-named defendants

are Directors of the Rose Tree Unien School District, Dela-

ware County, Pennsylvania. Defendant, H. Joun Lumspen,

is an individual residing at Box 188, Lima, Delaware County,

“Pennsylvania and is the Secretary of the Rose Tree Union

School District, Delaware County, Pennsylvania. Defendant, -

Srantey C, CaMPBELL, is an individual’ residing at 5 Well

Fleet Drive, Media, Delaware County, Pennsylvania and is

the Superintendent of the Rose Tree Union School District,

" Delaware County, Pennsylvania. Defendant, ConTINENTAL ©

—Tla—

Record —

BaNK AND Trust Company, is a corporation organized under

the banking laws of the Commonwealth of Pennsylvania

having its principal office at Main and Swede Streets, Norris-

town, Montgomery County, Pennsylvania and is the Treas-

urer of the Rose Tree Union School District.

3, The General Assembly of the Commonwealth of

Pennsylvania adopted Act No. 91, which was approved June’

15, 1965, entitled, ,

“An act relating to vthe public school system, panne

_ ing certain provisions applicable as well to private and”

~ parochial schools; amending, revising, consolidating and _

changing the laws relating thereto,” further providing

for the health, welfare and safety of the children of the

Commonwealth by requiring school districts under cer-

_ tain. circumstances to provide free transportation ‘of

pupils attending nonpublic elementary and high schools

not operated. for profit. .

Said act provides in part as tlionte ae es

“Section 1. Section 1361, act of March 10, 1949.

(P. L. 30), known as the “Public School Code of 1949, “

- is amended to read:

. Section 1361. When Provided. — The board of

school directors in any school district may, out of the

funds of the district, provide for the free transportation

of any resident pupil to and from the public schools and

to and from any points in the Commonwealth in order

to provide tours for any purpose connected with the _

educational pursuits of the pupils. When provision is .

made by‘a board of school directors for the transporta-

tion of resident wees to and from the public schools,

_—I2a—

| Record .

the board of school cack shall also make provision

for the free transportation of pupils who regularly at-

tend nonpublic elementary and’ liigh schools not op-

erated for profit. Such. transportation provided for

pupils attending nonpublic elementary and high schools

not operated for profit shall be over established public

school bus routes. Such pupils: shall be transported to

and from the point or points on such routes nearest or

- most convenient to the school which such pupils attend.

_ The board of school directors shall provide such trans-

portation whenever so required by any of the provisions

- of this act or of any other.act of Assembly . .

4, Pursuant to the aforesaid act, defendant dices of

the Rose Tree Union School ‘District on or about June 24,

1965 approved the expenditure of funds to provide for bus

transportation for nonpublic schoo] pupils in the Rose Tree

~ Union School District. ,’

f Plaintiff is advised, believes and shevsliote avers that

the dforesaid defendants have authorized the purchase of ad- .

ditional buses (which purchase is imminent) and the ex-

penditure of other sums for the purpose of providing bus.

transportation for nonpublic school pupils. :

6. Some of the pupils for whom the said defendants

proposed to provide free bus transportation attend sectarian

schodls. Said action and the aforesaid act are null and void .

because they are contrary to the provisions of Article X, Sec-

tion 2 of the Constitution of the Commonwealth of Penn-

sylvania, which provides as follows:

_ “No money raised for the support of the public

_ schools of the Commonwealth shall be appropriated to

or used for the support of any sectarian school.”

—iie~

Record ~

- 7. The aforesaid action and act are null and void and —

violate the provisions of Article I of the: Amendments to the

Constitution of the United States in that they: provide for

the support of religious purposes.

8. Section 2 of the aforesaid Act, 91 ee June 15, -

” 1965, is null and void under the provisions of Article III, -

Section 17 and Article III, Section 18 of the Constitution of

the Commonwealth of Pennsylvania which forbid appropria-

tions to charitable or educational institutions not under the

absolute control of the Commonwealth and for charitable,

educational or benevolent purposes to any person or commv- .

nity . . . denominational or sectarian institution, corporation

- Or smcctalie:

9. The aforesaid act is null and void because it is so

. vague and indefinite that it is deste ciated of being aaa in

that it does not,

(a) define ‘ ‘sleepin elementary and high schools

not operated for profit”;

(b) define “established public school bus aa

(c) provide any limitation on the amount of ex- |

penditures;

(d) limit the method of transportation;

(e) define “pupils”.

10. The aforesaid act does not limit free transportation

to pupilseresiding in the school district, and neither said act

nor any other provision of the “Public School Code of 1949”

authorizes the transportation of nonresident pupils (with

certain minor exceptions not material here), and is, there-

fore, null and void.

- 11. Plaintiff is advised, believes and therefore ayers

that the aforesaid defendants (board of school directors) have

authorized the transportation of students who attend a sec-

- tarian school which is not located in the Rose Tree Union

School District. Neither the aforesaid act nor any other

provision of the “Public School Code of 1949” authorizes the

transportation of pupils who attend a school outside of the

school district and said action, therefore, is null and void.

12. The aforesaid Act 91 is null and void in that it does

not provide for the welfare and safety of children but rather

provides. for support and assistance to nonpublic and sec-

tarian religious education in violation of the Constitution of

the Commonwealth of Pennsylvania and the United States.

13. -Plaintiff has no adequate remedy at law and unless

the relief hereinafter requested is granted, she, as a taxpayer .

will suffer irreparable injury.

_ Wuereror:, plaintiff prays that the Court eater a de-

cree enjoining the defendants temporarily until hearing and

perpetually thereafter from expending any further or addi-

tional sums for the purpose of implementing the aforesaid

act and from causing, permitting or authorizing the use of

any buses for the free transportation of sectarian school stu-

dents to or from sectarian schools.

~ Wituam P. THORN,

| Attorney for Plaintiff.

. COMMONWEALTH OF PENNSYLVANIA tC

ss.:

~” Counry-or Montcomery | |

| Betty J. WorrELL, being duly sworn according to law, .

deposes and says that she is the Plaintiff in the above action

ad

—TDHa—

Record

. and that the facts set forth in the foregoing Amended Com-

‘plaint In Equity are true. and correct to the best of her

knowledge, information and belief.

_ Berry J. Wonnsts:

Plaintiff. -

Sworn to we subscribed, before me , this 23rd day of

September A.D. 1965.

Risissern M. teens, i

| Notary Public.

Notary Public, Upper Merion Twp., Mont, Co. My

Commission Expires January 29, 1968.

5

ANSWER TO AMENDED COMPLAINT \,.

The Defendants Answer the Amended Complaint as

follows:

1. Admitted.

2. Paragraph 2 of the Complaint * admitted except

for the allegation concerning the residence of H. John Lums-

den. H. John Lumsden resides’ at 3308 Chatham Place,

Upper Providence Township, Delaware County, Pennsyl-

vania.

a Adutend.

4. Admitted.

- 5,» Admitted.

—T6a—

-_. Record

6. It is admitted that the said Defendants propose to

provide free bus transportation to some pupils who attend -

sectarion schools. The other averments of paragraph 6 of

. the Amended Complaint are conclusions of law and require

. no answer.

7.. The averments of ‘paregreph 7 of the pone |

Complaint are conclusions of law and require no answer.

_. 8 The averments of paragraph 8 of the Amended

Complaint are conclusions of law and.require no answer.

9. The averments of paragraph 9 of the Amended

Complaint are conclusions of law and require no answer.

10. The averments of paragraph 10 of the Amended

Complaint are conclusions of law and require no answer.

_. II. The first sentence of paragraph 11 of the ial

‘Complaint is admitted. The other averments of paragraph

11 of the Amended Complaint are conclusions of law and

require no answer.

12. The averments of paragraph 12 of the Amended

Complaint are conclusions of law and require no answer.

13. The averments of paragraph 13 of the Amended .

Complaint are conclusions of law and require no answer.

GeorcE W. THOMPSON,

Attorney for Defendants.

COMMONWEALTH OF PENNSYLVANIA

‘ . SS.:

County or MonTcoMERY.

H. Joun Lumspen, being duly sworn according to law,

deposes and says that he is one of the Defendants and Secre- .

tary of the Board of School Directors of Rose Tree Union

ae

Record

School District and that the facts set forth in the foregoing

Answer. are true and correct to the best of his noire.

information and belief.

H. Jorn LUMSDEN” .

Sworn to and subscribed before me. this 8th day of :

i A.D. 1965.

| Siibecas ¥. Movery,

Notary Public.

| Upper Darby Twp., Delaware Co., Pa: My Commis-. |

‘ - sion Expires August 4, 1969.

IN THE COURT OF COMMON -PLEAS OF

DELAWARE COUNTY, PENNSYLVANIA

Betty J. WorRELL

_ VS.:

Georce Matters, et al

No. 10209 of 1965:

InEourry

_ PETITION TO INTERVENE }

The petition of Paul A. Grubb, Linda Grubb; his wife;

Donald Manz, Anna Manz, his wife; John Quindlen and

Catherine Quindlen, his wife, respectfully represents:

: 1. Paul A. Grubb and Linda Grubb are husband and

__ wife, residing at 7 Valley Road, Edgmont Township, Dela-

ware County, Pennsylvania, and are residents within the

geographical boundaries of the Rose Tree Union School Dis-

trict.

—8a—

Record

2. The said Paul A. Grubb and Linda Grubb hae five

‘children of school age, four children in attendance at St.

- Francis de Sales parish school in Lenni, Aston Township,

Delaware County, and one child at ‘St. James High School in

Chester, Delaware County, Pennsylvania.

3.. Under the Act of Assembly, Act No. 91 which was

adopted into law and approved June 15, 1965, they believe

that they are entitled to the use of the bus transportation

provided by the Rose Tree Union School District, along the .

‘ established public school routes, for their children. By the’

above captioned action the plaintiff therein prays the Court ©

to enjoin the authorization and use of buses for transporting

their children to school.

4. The said Paul A. Grubb and Lirida Grubb believe

that should the prayer of the plaintiff be granted, their rights

under the Act of Assembly and the rights of their children

would be violated and that their rights under Amendment I

to the Constitution of the United States would be violated

in that they would be denied their religious liberty and the.

religious liberty of their children and the free exercise thereof.

5. The said Donald J. Manz and Anna Y. Manz are

husband and wife, residing at 28 War Trophy Lane, Middle-

town Township, Delaware County, Pennsylvania, and are

residents within the geographical boundaries of the Rose

Tree Union School: District.

+6, The said Donald.J. Manz and Anna Y. Manz have

_ two children in attendance at St. Francis de Sales parish

school in Lenni, Aston ta ipeawene County, Penn- -

es sylvania.

“1. Under the Act of hiessaly, Act No. 91 which was

adopted into law and approved June 15, 1965, they believe —

a

—9a—

Record

that dey are entitled to use the bus transportation provided

_by the Rose Tree Union School District, along the established _

public school routes, for their children. By the above cap-

tioned action the plaintiff therein prays the Court to enjoin

the authorization and ‘use of buses for transporting their

children to school. : ie

‘ 8. The said Donald J. Manz and Anna Y. a believe

_ that should the prayer of the plaintiff be granted, that their

_ rights under the Act of Assembly and the rights of their

children would be violated ard that their rights under.

Amendment I to the Constitution of th United States would.

be violated in that they would be denied their religious liberty

and the religious liberty of their children and the free exer-

cise thereof.

. 9. The-said John iene Jr. and Catherine Quind-

len are husband and wife, residing at 1129 Roberts Road,

Upper Providence Township, Delaware County, Pennsyl-

vania, an dare residents within the geographical boundaries

of the Rose Tree Union School District.

10. The said John Quindlen and Catherine Quindlen -— |

have two children in attendance at Nativity of the Blessed

Virgin Mary parish school in Media, Delaware, County, — |

Pennsylvania.

11. Under the Act of Assembly, Act No. 91 which was

adopted into law and approved June 15, 1965, they believe

‘ that they are entitled to use the bus transportation provided

by the Rose Tree Union School District, along the established

public school routes, for their children. By. the. above cap-

tioned action the plaintiff therein prays the Court to enjoin

the authorization and use of buses for Bairnracetiechy their

children to school.

2

_. 12. The said John Quindlen and Catherine Quindlen

believe that should the prayer of the plaintiff be granted,

that their rights under the Act of Assembly and the — 3

of their children would be violated and that their

under Amendment I to the Constitution of the United

would be violated in that they would be. denied their reli-

‘gious liberty and the religious liberty of their clara and

the free exercise thereof. -

| Wuerzrone, all the aforesaid siatibaatiin request leave -

to Intervene and defend against any Injunction denying them

their rights and the rights of their children, and they further

request leave to file a responsive pleading to the Complaint - _

within twenty days eran the Court permit their interven-

~—tion. :

REED AND GIBBONS,

Attorneys for Petitioners.

CoMMONWEALTH OF PENNSYLVANIA ©

pe $$.: .

_ County or DELAWARE

Paut Gruss and. Linpa Gruss, his wife, being duly

sworn according to law, depose and say that they are peti-

-tioners in the foregoing petition, and the facts set forth relat-

ing to their interest, are true and correct to the best of their

knowledge and belief.

, Paut Gruss

Linpa GrusB

Suéni to and subscribed before me this 2nd day of ~-

tember, 1965.

Ganev H. McCartuy,

Notary Public.

—8la—

Notary Public, Media, Delaware Co., Pa. My Commis:

sion Expires October 14, 1968. ~ ¥.

COMMONWEALTH OF PENNSYLVANIA

SS.

Countr OF DELAWARE. | ae

Dowarp Manz and ‘Anna Manz, his wife, being duly

sworn according to law, depose and say that they are peti- .

tioners in the foregoing petition, and the facts set forth relat-

ing to their interest, are true and correct to the sa of their -

. knowledge and belief,

. Donatp Manz

ANNA Manz

‘Sworn to and subscribed before me this 2nd day of Sep-

tember, | ye

_ GENEVIEVE H. McCartny, .

Notary Public.

Notary Public, Media, Delaware Co., Pa. My Coniunte-

sion Expires October 14, 1968. *

es CoMMONWEALTH OF PENNSYLVANIA

ss.

County oF DELAWARE

_ Jon Qurinpten, Jr. and CaTHERINe QUuINDLEN, his

wife, being duly sworn according to law, depose and say that

they are petitioners in the foregoing petition, and the facts

set forth relating to their interest, are true and correct to the

best of their knowledge. and belief.

Joun Quinpien, Jr. -

_ CaTHERINE QUINDLEN |

_—

Record

: §worn to and sbeitinl before me this 2nd dey of 7

— 1965.

2) _» Genevieve H. icCheree,

| Sa Notary Public.

: ‘Mein Public, Media; Delaware Co., Pa. My Commis-

. sion ~— October 14, 1968.

IN THE COURT.OF COMMON: PLEAS OF

DELAWARE COUNTY, PENNSYLVANIA °

Barre}. Wesnins |

_ VS.

~ Georce MatrTers, et al .

| - “No. 10209 of 1965

(i Bgurre

RULE TO SHOW CAUSE .

: \

- AND New, this ard day of September, 1965, upon con-

sideration of the-within petition; a Rule to Show Cause why

the petitioners should not be granted leave to Intervene as

| parties-defendant in the above matter, is granted.

- This Rule is Returnable September 7, 1965 at 10 o’clock

A.M. in Court Room No. 1, Court House, Media, Penney

vania. 3

= THE COURT:

ee Joun V. ——

PETITION FOR ISSUANCE OF A

WRIT-OF SPECIAL CERTIORARI

To THe HonoraBLe, Tue Cir JUSTICE AND ASSOCIATE

Justices OF THe Sam Court:

| The Commonwealth - of Pennsylvania » Walter E.

Alessandroni, Attorney General, Intervenor, respectfully peti- -

tions your Honorable Court to issue a Writ of Special Cer-

_tiorari to the Court of Common Pleas of Delaware County

__ in the matter of Betty J. Worrell v. George W. Matters, et al.,

No. 10209 of 1965, in equity, to remove the proceedings to

the Suprerne Court and there to set the matter down for dis- .

ogre and in support whereof. respectfully represent:

. The Act of June 15, 1965 (Act No. 91) directs the

aia districts of the Commonwealth which provide free

transportation for resident pupils to and from public schools

to also furnish under certain limiting terms and conditions

similar transportation for children attending nonpublic, non- |

profit schools.

2. Plaintiff on September 1, 1965 filed this action in

equity for an injunction to restrain officérs of the Rose Tree

‘Union School District from complying with the mandate of.

the Act. Declaration of Intervention in said case has been

filed by Walter E. Alessandroni, Attorney General, on behalf

of the Commonwealt hof Pennsylvania. Plaintiff’s complaint

and Intervenor’s answer are attached hereto and marked as

Exhibits A and B respectively.

3. On August 30, 1965 taxpayers instituted suit in the

Court of Common Pleas of Montgomery County against of-

ficials of the School District of Abington Township to enjoin

them from complying with the terms of Act No. 91. Brenard ©.

' Record

G. Rhoades, et al. v. School District of Abington Township,

Docket No. 65-10471, Commonwealth. Docket, 1965. Dec-

laration of Intervention in said case has been filed by Walter _

E. Alessandroni, Attorney General, on behalf of the Com-

monwealth of Pennsylvania. A petition for the issuance of

a Writ of Special Certiorari to the Court of Common Pleas ©

of Montgomery County in the said case has been filed in the

Supreme Court of Pennsylvania giapregeousty with

the instant petition.

. 4, Your Petitioners are informed, believe, and here

fore aver that other, similar proceedings will be brought in

other counties of the Commonwealth. |

5. Each of these actions presents a single, identical

_ issue of law. None of them irivolves the resolution of a dis-

*. puted material issue of fact.

6. Each complaint challenges the silblathalivy of

Act No. 91 under provisions of the Pennsylvania Constitution

which prohibit aid to sectarian institutions and provisions of —

the Federal Constitution respecting an establishment of reli- -

giort.

1. The issue thus raised is one of paramount public

importance and, yet, of the most delicate character. It can

be resolved only by this Court speaking authoritatively and

definitively on the meaning of these constitutional provisions

as applied to the State action here brought into question.

8. For the several Courts of Common Pleas to assume

and retain jurisdiction over numerous proceedings, each one

identical with the other, would place an undue and unneces-

' sary burden upon the courts of this Commonwealth and

cause confusion in the administration of justice.

-9, The legality of the actions of school district officials

who are currently providing transportation for school chil-

—85a—

Record

dren pursuant to the provisions of Act No. 91 —_ been

called into question.

‘10. The challenges to the Act jeopardize the health and

safety of over 70,000 child beneficiaries under the Act in

their travel to and from school.

_1l. .This-Court in the exercise of its King’s Bench

powers has supervisory jurisdiction over all inferior tribunals

proceeding when, for any reason, the ends of justice would

be promoted thereby. Bell Appeal, 396 Pa. 592 (1959), |

School District of Township of Upper Merion v. Boehm; et

(1964),

12. By reason of the great ities interest in this case,

the importance of its ultimate determination to the citizens, ©

taxpayers and parents of the Commonwealth, and in order to

‘

and may remove the record therefrom at any stage of the . -

"al, 418 Pa, 520 (1965), Butcher v. Bloom, 415 Pa, 438 -

avoid a multiplicity of similar suits and to remove the threat.

posed by this suit to present any prospective programs of

_ school districts for transportation of nonpublic school pupils,

and in view of the broad powers possessed. by your Honor-

able Court, your Petitioners belieye and therefore. aver that

the interests of the citizens of the € monwealth of Penn-

sylvania and of justice would be best served were your

Honorable Court to take jurisdiction of this case.

Wuererore, the Gomiuonwealth of Pennsylvania by

spectfully requests your Honorable Court to issue a Special

Writ of Certiorari to the Court of Common Pleas of Dela-

ware County commanding that the record in the within

_ proceeding and all matters touching the same .be certified

and transmitted forthwith to your Honorable Court and

that the cause be set down and consolidated with the case of

e

- Walter E. Alessaridroni, Attorney General, Intervenor, re-

’ Department of Justice

‘(COMMONWEALTH OF PENNSYLVANIA

ee

ite

Rhoades, et al. v. School District of Abington Township,

supra, -for argument.

Respectfully submitted,

s/Wa Ter E. ALESSANDRONI

WALTER E. ALESSANDRONI

Attorney General

s/EDWARD FRIEDMAN

EDWARD FRIEDMAN

Deputy Attorney General

s/Joun P. McCorp

Joun P.McCorp_..

Deputy Attorney General

Harrisburg, Pa. 17120

September 21, 1965

sS.:

County or DAUPHIN.

Epwarb FriepMan, being duly sworn according to law,

-deposes and says that he is a Deputy Attorney General of the

-Commonwealth of Pennsylvania and that as‘such he is au-

thorized to and does take this affidavit to the above captioned

Petition for Writ of Special Certiorari and that the facts set

forth therein are true and correct to the best of his informa-

tion, knowledge and . belief.

s/EDWARD FRIEDMAN

EDWARD FRIEDMAN

‘aim to sal cubical before me this 24th day of Sep-

tember, See es

s/Gauntet SALERNO,

Notary Public. _

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