I concur in the opinion of the court that the judgment of the lower court should be affirmed, but I am unable to agree that chapter 53, Laws of 1941, is wholly unconstitutional.
Paragraph four of the complaint reads as follows:
"That pursuant to the provisions of said Chapter 53, Laws of 1941, defendant directors of said Consolidated School District No. 201 are using public funds raised by general taxes in saidDistrict and state apportionments *Page 70 from the state permanent school fund and the current stateschool fund, and state sales and excise taxes, to maintain and operate a school bus over a route designated by said Directors of said District for the transportation of school pupils of the district, who are eligible to attend the common schools, from their homes to the Christian School and return. That said Christian School is located in said District and is a privately owned and operated sectarian or parochial school, maintained and controlled by a church denomination or religious sect,wherein the tenets of the religion of said particular religioussect are taught as a part of the regular curriculum of said Christian school. That said Christian School is not a part of the public school system of this State and is not under the control of the voters of said Consolidated School District No. 201 nor of defendant Directors as the qualified representatives of said voters." (Italics mine.)
The appellants have admitted the allegations of fact set forth in the complaint. In so far as the act authorizes or requires the school district to defray the expense of transporting pupils to and from the school in question, it offends § 2 of Art. IX of the constitution, because, to do so, the school district would have to use revenue derived from the common school fund and the state tax for common schools, and this cannot be done in support of any other schools than the common schools. Neither can the school district use any other public funds for such purposes, because the school in question gives religious instructions, is under sectarian control and influence, and is a religious establishment within the meaning of § 4 of Art. IX of the constitution, and to authorize and require the school district to use any public funds therefor would offend this provision of the constitution, as well as § 11 of Art. I.
I think, however, the act, as applied to schools, other than the common schools, which meet the requirements of the law as to educational standards and are not devoted to any religious worship, exercise, or instruction, *Page 71 are free from sectarian control or influence, and do not constitute religious establishments, is constitutional; and, while the funds referred to in § 2 of Art. IX cannot be used to defray the expense of transportation to or from such schools, I see no reason why other public funds, if made available to the school districts by the legislature, cannot lawfully be used therefor.
The act is designed to afford protection to children attending school under the compulsory school attendance laws against the hazards of the public highways, and it is within the power of the legislature to enact such legislation. A school district is an arm of the state and is subject to control by the legislature to the extent at least that, if it is given the privilege of using the public highways to transport pupils within its limits to its schools, it can be required to transport pupils to other schools, as provided in § 2 of the act, if such schools are not within the classes mentioned in the articles of the constitution referred to above.