(dissenting):
I fully concur in the proposition that the policy of excluding religious teaching from the common schools is embodied in the Constitution and the laws of the State.
That the saying of prayers of the Eoman Catholic church by the plaintiff and her assignor in the morning, at the noon hour and at the closing of the school in the afternoon, in which the Catholic children were required to join and the Protestant children were permitted if they, desired but were not required to be present, was within the inhibition of the Constitution and a violation of the provision that “neither the State nor any subdivision thereof, shall use its property or credit, or any public money, or authorize or permit either to be used directly or indirectly in aid or maintenance, other than for examination or inspection, of any school or institution of learning, wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught.” (Const, art. 9, § 4.)
That the wearing of the distinctive dress or garb of the religious order or sisterhood to which the plaintiff and her assignor belonged in school hours, was an object lesson which had a tendency to make an impression upon the minds of the children and to render them susceptible to the influence of their religious teaching; certainly the Catholic, if not the non-Catholic,children. We can make no distinction in this respect, whether the children are Eoman Catholic or Protestant to whom religious teaching is imparted in the common schools. It is as much a violation of the constitutional provision to instruct one class of children as the other in the denominational doctrine' or tenet of any religious denomination.
It is within tire general powers and duties of the State Superin-' tendent of Public Instruction to prevent the open and persistent teaching of religious denominational doctrines and tenets in the *374public schools or the. use of the school buildings at any time for such purposes, and, therefore, within his power and authority to make and enforce the order requiring Hendrick, as trustee of the school district' in which the plaintiff and her assignor were teaching, to notify and require them to discontinue the use and wearing by them during school hours of the distinctive dress or garb of the religious sect or order to which they belong or of which they are members and in the event that after such notification and requirement they refused to comply therewith or obey such requirement, that said trustee forthwith dismiss the plaintiff and hér assignor, Hora O'Connor and Elizabeth E. Dowd, as teachers in said public school. Indirectly this matter is entirely within the control of the State Superintendent. He could have canceled fhe certificate of the plaintiff and her assignor under the authority given him by sections 10 and 11 of title 1 of the Consolidated School Law (Laws of 1894, chap. 556), and in that manner enforce his order. He could also, under the authority conferred upon him by section 13 of title 1 of the Consolidated School Law, remove the trustee for his neglect' or refusal to perform the duty enjoined upon him by the order. I can. find no authority for the further order of the State Superintendent énjoining and restraining the trustee from paying the plaintiff and her assignor for their services as teachers during the time they were actually employed. His authority over the public money of the State is given by section 13 of title 1 of "the Consolidated School Law, which provides that the. State Superintendent may withhold' any.share of the public money of the State from any district for willfully disobeying any decision, order or regulation .of said Superintendent pertaining to the. common schools.! The power over the public money given to the State Superintendent does not affect the liability of the school district upon the contracts made by its trustee with the plaintiff and her assignor. The contracts made: with them by. the trustee aré enforcible, and the" rights of the parties are the same as in casé of any other contract of employment: If they, gave sufficient cause they could, as the State Superintendent directed, be dismissed. They held certificates qualifying them as teachers, one given by the State Superintendent to the plaintiff- after his predecessors in office had-in several instances by their .decisions held that it was -improper for teachers to wear the prohibited garb in the *375schools, in which it was duly certified as follows: “ I hereby certify that Nora O’Connor has furnished sufficient evidence of successful experience in teaching, has satisfactorily passed the examinations prescribed by law, and is duty qualified by learning, ability and moral character to pursue the profession of teaching. She is, therefore, by fliis instrument, licensed for life to teach (in) any public school in the State of New York without further test or examination.”
The objection is not to their competency or the qualification of the plaintiff and her assignor as teachers in the public schools. It is to the objectionable methods adopted by them in conducting the school, their religions exercises and the wearing of the distinctive' garb of their order. Their competency and qualifications as teachers, and their competency to contract, was settled and determined by their certificates, and, therefore, their right to recover for their services actually rendered rests upon the principles applicable to contracts generally. That part of the judgment which provides “ that the plaintiff and Elizabeth E. Dowd, her assignor, are not entitled to recover for their services as teachers, under their contract with Patrick Hendrick, as such trustee, rendered by them during the three weeks they taught, after they were notified of the decision of the Superintendent of Public Instruction,” is erroneous.
The judgment should be reversed.
Judgment affirmed, with costs.