(dissenting).
I dissent from the majority’s harsh and unjust conclusion. In reviving the lifeless corpse of the Alaska Organic Act, the court ignores realities and establishes a harmful rule of constitutional interpretation. In concluding that the transportation of a child directly benefits a school, it disregards facts inescapable on the record of the Constitutional Convention, and assumes a state of facts that the record does *945not support. In expressing criticism of the school bus statute because literally “all” school children in Alaska are not afforded transportation, it unjustifiably imputes to the legislature fictitious motives, and usurps the legislative prerogative of determining what is appropriate or necessary for the public good. In pointing out that weather and traffic hazards are as detrimental to the non-public school children who are not entitled to transportation under Chapter 39 as to those who do qualify for the assistance given by the statute, it suggests the existence of an unfair discrimination; and then in ultimately denying bus transportation to all non-public school children, it compounds the very discrimination which it appears to deplore. In construing the constitution so narrowly and constrictively, it saps the strength and takes the meaning from the classic statement of human rights in the first article, that “This constitution is dedicated to the principles * * ⅜ that all persons are equal and entitled to equal rights, opportunities, and protection under the law * * *.” In permitting a child to ride a school bus only on the condition that he attends a public school, it has the coercive effect of restricting the natural right of parents, acting in accordance with their legitimate preferences, to direct the education of their children; and thus it disregards the fundamental theory of liberty which excludes any general power in the government to standardize the education of children.
1.The Alaska Organic Act.
The Organic Act prohibited the appropriation of public money for the “support or benefit” of a private school.1 The state constitution prohibits the payment of money from public funds for the “direct benefit” of any such school.2 I am convinced that Chapter 39 confers no benefit of any kind on the private school, and therefore is a valid legislative enactment whether tested under the Organic Act or the constitution. But I submit that the court has established a harmful rule of construction in measuring the validity of an existing statute against an organic law which no longer existed after Alaska became a state.3
It is an established doctrine of American jurisprudence that a legislative enactment is presumed to be valid and constitutional,4 and that the final authority in determining whether this is so is vested in the judiciary.5 If this doctrine has any significance at all it means that a statute, until declared invalid by a court, is an operative fact. The act involved here was so considered. Since its enactment in 1955, and at the time the state constitution became effective, it was in operation; it was respected and obeyed by those charged with the duty of executing the laws. It is in effect now. This is as it ought to be.6
If at the time the constitution became operative the presumption of validity still attached to Chapter 39, and it was recognized by all concerned as something that existed and had meaning, rather than as a nullity or something that did not exist, then I submit that it was a law “in force” within the meaning of article XV, section 1. So long as it was consistent with the constitution it was intended to continue in force until it expired by its own limitations, *946or was amended or repealed. The only restriction or limitation was that such a law be in harmony with the constitution; it was not required that it also be consistent with the Territorial Organic Act. Logically, then, this means that the validity or constitutionality of such a statute was thereafter to be tested only against the limitations set forth in the new state constitution.
The delegates to the Convention were not framing an organic law for people entering into political society for the first time, but rather for a community already organized with existing laws. It can be presumed that they knew the nature and effect of those laws. They felt it unnecessary and impracticable to provide for the enactment of an entire new body of law for the state when existing statutes would in most instances suffice. Consequently, they did what was only reasonable and practical; they provided for the continuation of Territorial laws where they were in harmony with the constitution. They thus established for the state a system of statutory law with the same legal effect as if those statutes had been re-enacted by the legislature for the state7 — that branch of the state government which derives all of its authority from the constitution.
The statutes thus adopted by reference were those that were “in force” on the effective date of the constitution. The majority says that the dictionary gives the word “valid” as one of the definitions of the phrase “in force”. But the dictionary also states that the phrase means “operative.” 8 It is more reasonable to assume that this is what was intended. The delegates could not determine which laws were valid and which were not. If Territorial laws existed and had not been declared invalid by a court, then they were operative —they were in force. It would be presumed that they were also valid.
The construction adopted by the majority of this sourt can be explained only on the theory that if an act of the legislature was invalid under the Organic Act it was not a law; it was inoperative, conferred no rights, imposed no duties and afforded no basis for actions taken under it.9 If such a broad statement is universally true, it would logically follow that something that was not a law at the time of enactment could not be a law in force at the time the constitution became effective.10
But it has been found that this statement must be taken with qualifications. Professor Willoughby recognized this some thirty years ago. He spoke of “circumstances under which legal rights or obligations or consequences are attached to a legislative enactment which is later held to be unconstitutional”, and stated that “the retroactive force of the judicial pronouncement as to unconstitutionality is not complete.” 11 The courts, too, have seen the problem. The Court of Appeals for the Third Circuit, in speaking of a taxing statute, said:
“Accepting the unconstitutionality of the act of 1929, as determined by the Supreme Court of the State, it was none the less a statute under which the school district acted when it levied its taxes for the years 1937 and 1938.”12
The Court of Appeals for the District of Columbia, after referring to the belief that *947if an act is declared unconstitutional it never had any force or effect, said:
“ * * * Yet a realistic approach is eroding this doctrine. * * * ”13
The principle, and the problem, has perhaps been most explicitly stated by Mr. Chief Justice Hughes when, in speaking for a unanimous court, he said:
“It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, — with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified. * * * ”14
There are, indeed, difficult questions, as the Chief Justice stated. Adherence to the rule of absolute retroactive invalidity might well have undesired consequences in this case. It could mean that if Chapter 39 were not really a law when it was enacted in 1955, every action taken under it was invalid, unlawful and without meaning. Monies used to transport children who did not attend the public school were 'illegal expenditures. In fairness to Alaska taxpayers, those monies should now be recovered by the state.
But this raises serious problems. From whom, for example, would the state seek recovery of those expenditures? Would it be the Commissioner of Education whose duty it was under Chapter 39 to administer the statute? Would it be the school bus contractor to whom the monies have been, and are now, being paid? Or would it be, perhaps, the child who rode the school bus, at public expense, in violation of the Organic Act and the constitution ?
I would doubt that the executive branch of our government, which has so successfully assailed the validity of the statute, would choose to go that far. But if it did not, then it places itself in the inconsistent position of saying on one hand that the act was a nullity, of no force and effect whatever, and on the other hand in saying that it really did have some operative force prior to the effective date of this court’s judgment declaring the statute invalid. If it is considered that the past may not be disturbed because, e. g., rights have become vested or because prior determinations deemed to have finality have been made or perhaps even because of considerations of broad public policy, then in all fairness there should be recognized the operative force of Chapter 39 at the time the constitution became effective and the fact that it was a law “in force” within the meaning of article XV, section 1.
Another striking incongruity is found in the court’s holding that it is not bound by the decision of the United States Supreme Court in the Everson case.15 If Chapter 39 was void on the day of its enactment, as the majority says it was, then to be con*948sistent the court should recognize the status, as it then existed, of the judicial system which had the power to determine whether the act was void under limitations found in the Organic Act.
In 1955 Alaska was a Territory. Its judiciary consisted of one district court, created by act of Congress.16 That court was bound to follow the law as laid down by the United States Supreme Court; it was not free to disregard a pertinent decision of the Supreme Court if it felt, as the majority does here, that such decision was unpersuasive.17
In Everson it was held that use- of New Jersey’s general fund to pay for transportation of children to parochial schools was not a violation of the first and fourteenth amendment to the federal constitution. The court found that those monies were used for a public rather than a private purpose, and that they did not have the effect of supporting the parochial schools. It is manifest, also, from what the court said that no benefit was considered to have been conferred upon such schools, and that if it had, the decision on the constitutional questions would have been the other way.
That decision, then, would have been controlling if the validity of Chapter 39 had been determined by the Territorial District Court. That court, regardless of the personal views of a particular judge, would have been required to hold that the use of public monies to provide transportation of children to non-public schools neither supported nor benefited such schools. Chapter 39 would, of necessity, have been declared to be a valid act of the Alaska Legislature and not contrary to the Territorial Organic Act.
This demonstrates the incompatible positions that this court has taken. In order to justify its assumed right to test the validity of Chapter 39 against the now nonexistent Organic Act, it says that one must go back in time and ascertain whether the act would have stood up under limitations found in the organic law of the Territory of Alaska. But it chooses to ignore a logical condition of utilizing such approach — that of also measuring the validity of Chapter 39 against restrictions on judicial pronouncements then imposed upon the Territorial District Court. This court reaches into the past to resurrect the Organic Act; it then returns to the present to assume the prerogative of a state court, not bound in a matter like this to follow a pertinent decision of the United States Supreme Court.
If the court insists on applying the rule as to absolute retroactive invalidity, then I submit it should be applied in its entirety. If this is done, it would be readily apparent that Chapter 39 was a “law in force”, within the meaning of the constitution, and that the Alaska Organic Act has no bearing at all on the issue in this case.
2. Constitutional History.
If all relevant proceedings of the Constitutional Convention are considered, it will be abundantly clear that the “direct benefit” proscription in article VII, section 1, was not meant to preclude public transportation of children attending non-public schools. This court, however, refuses to attach importance to any of such proceedings. It takes the position that it was left to the court to decide whether free transportation of children to non-public schools would constitute a direct benefit to the schools, and that if the delegates to the Convention had intended otherwise they would have made specific provision in the constitution for such transportation. In short, the majority sets no value on constitutional history in determining constitutional intent.
That, I think, is unsound. The words “direct benefit” require definition; if they *949did not, this case would not be before the court. In such a case it is entirely proper and perhaps even necessary to have recourse to extrinsic evidence in order to ascertain the meaning which those words had at the time the constitution was written and adopted.18 An important source of such evidence would be found in the history of events which led up to the adoption of the section where the words were used, and this history would include the recorded proceedings of the Constitutional Convention.19 As the United States Supreme Court said with respect to the Federal Constitution:
“The necessities which gave birth to the Constitution, the controversies which preceded its formation, and the conflicts of opinion which were settled by its adoption, may properly be taken into view for the purpose of tracing to its source any particular provision of the Constitution in order thereby to be enabled to correctly interpret its mean-⅜ ⅜ ⅜ j? 20
The court points out that motions and debates do not necessarily indicate the purpose of the majority of a convention in adopting a particular clause. But the point that I make is that if there are other convention proceedings, in addition to motions and debates, which clearly show the purpose of the provision in question, that this furnishes a valuable and satisfactory aid to interpretation which should not be ignored.
At the Convention in November 1955 delegates Johnson and Coghill introduced Delegate Proposal No. 6 which dealt with the subject of education. Section 7 provided in part:
“No public funds * * * shall be used directly or indirectly for the support, operation or maintenance, including transportation and other auxiliary services, for any schools or children therein except those Public Schools under the exclusive supervision- and direction of the State.” 21 (Emphasis added.)
On December 15, 1955 the Committee on Preamble and Bill of Rights submitted a report to the Convention and transmitted an article on health, education and welfare. This report stated that Delegate Proposal No. 6 had been considered and that “the Committee adopted sections 3 and 7 with some changes.” 22 Section 7 of that proposal, as modified by the committee, appeared in the last sentence of Section 1 of the committee’s article on health, education and welfare, and read:
“No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.”
This is identical with the last sentence of article VII, section 1 of the constitution.
The changes made by the committee are apparent and significant. Delegates Johnson and Coghill had wanted to prohibit the use of public funds for the direct or indirect support, operation or maintenance of non-public schools, and had specifically included “transportation and other auxiliary services.” The committee changed this to a prohibition only against “direct benefit” to such schools, without mention of transportation or other auxiliary services. The meaning of this change is inescapable: the committee rejected the thought that transportation and other auxiliary services should be precluded by the ban against the use of public funds for the direct benefit of private schools. There is no question *950but that this was its intent. During debate on the floor the chairman of the committee stated, in answer to a question, that the committee had given Johnson and Coghill’s proposal correct attention and rejected it permanently.23 It obviously did not consider that transportation of children had any legitimate bearing on the support, operation or maintenance of a school or that it would constitute a direct benefit to a school.
This did not end the matter. When the committee proposal on education came to the floor of the convention, Delegate Cog-hill moved to amend the section involved so that not only direct, but also indirect benefit would be prohibited.24 A portion of the debate that followed has been mentioned by the majority. But there was more that has not been referred to, and it merits consideration. It is revealing in showing that the convention thoroughly considered the implications of a prohibition against indirect benefit, and in showing, by a rejection of the proposed amendment, what was intended to be forbidden and what was not.
Delegate Ralph Rivers, in arguing against the amendment, pointed out what might be involved if indirect benefit were prohibited, i. e., the possibility of not being able to effectuate a legitimate public pui'pose because of incidental advantages that might result to a private concern. He said:
“ * * * if there is a public purpose for which money is to be expended it does not matter if some of it does result in an indirect benefit to some private concern, which may be a contractor; so I definitely don’t want to see the words ‘or indirect’ inserted in this section.” 25
Delegate Coghill was asked how indirect benefits might accrue to a private school. He answered by saying that there would be nothing wrong with the state making “any social welfare, health arrangements * * * with any private or parochial institution”, because they would be on a “contractual basis and would be providing a service to the public and not to the institution.” He saw nothing wrong with providing a hot lunch program with Territorial money or providing a health program in a school, saying—
“ * * * I do not deny that to the private school because I feel that it is an instrument of public benefit because a child is benefiting from it from the public standpoint * * *26
This is significant. If the author of the restrictive amendment considered that state health and welfare arrangements with a private school would not be banned by a prohibition against indirect benefit, then it is impossible to understand how state arrangements for transportation of children to the private school .could amount to a direct benefit to such school.
On the other hand, Delegate Coghill appeared to contradict himself later. He was asked what effect the proposed amendment would have on children’s foster homes which, in addition to caring for the bodily needs of children, also provided education. Delegate Coghill stated that the foster homes “would be deriving an indirect benefit of some sort or another.” 27
This statement must be considered in connection with a memorandum from the Director of the Alaska Department of Public Welfare which was then read to the convention. It listed the schools in Alaska, operated by private and religious organizations, to which the Territory was paying monies through the Welfare Department.28 The delegates may well have believed, considering these facts along with Delegate Coghill’s last statement, that to forbid any indirect benefit would be so prohibitive as to restrict the furnishing of needed welfare services.
*951When the proposed amendment finally came to a vote, it failed by 19 to 34. Delegates Coghill and Johnson, who had wished to prohibit bus transportation for children not attending public schools, voted in favor of the restrictive amendment. The entire committee which had formulated the section on education and had rejected the proposal of Delegates Johnson and Coghill voted against the amendment.29
Finally, in connection with a motion which was later defeated to strike all of the last sentence of the section on education, Delegate Victor Rivers asked why the committee had used the words “direct benefit” instead of “support or benefit.” 30 A member of the committee, Delegate Armstrong, answered this as follows:
“As I recall, Mr. President, we probably discussed the question of the support but we did not feel it needed to be in this particular section, and I don’t recall, Mr. Rivers, that we considered that as part of the text. I certainly would agree with what Miss Awes has said, although we discussed in Committee such things as direct legislation for the building of a school or the maintenance of a private school, which would be support, but it was our understanding that that would be covered under this word ‘direct benefit’. This would prohibit the direct appropriation or building and maintenance of private institutions.”31 (Emphasis added.)
This shows clearly what the committee had in mind. It discloses the meaning of the words “direct benefit”, i. e., the building or maintenance of private schools. It was not intended to preclude incidental aid that might result to a private educational institution as a by-product of the expenditure of public funds otherwise legitimate, such as those for health and welfare services.
I submit that this record of the convention proceedings merits the attention of the court. The proposal of Johnson and Coghill to prohibit bus transportation for a certain class of children, and its definite rejection by the committee and by the convention as a whole, certainly ought to be of great value in determining the meaning of “direct benefit” as it relates to school bus transportation. The discussion that took place on Coghill’s motion to prohibit any indirect benefit, and its rejection by the convention, should make it clear that all the convention wanted to prevent was the use of public funds for the establishment and maintenance of other than public schools, or as Delegate Armstrong put it, for the “direct appropriation or building and maintenance of private institutions.” The delegates realized that in attempting to effect a necessary good, such as the care and education of homeless children and the protection of their health and safety, that the state might not in all cases be able to avoid incidentally aiding other interests which could not be benefited by direct action. It did not wish such a possibility to frustrate the accomplishment of the common good. That is why only direct and not indirect benefit was prohibited.
It is abundantly clear that those who formed the constitution did not wish to stop the payment of public monies directly to a religious or other private institution that cared for needy children, even though such institution also furnished education for those children. But if this does not constitute a direct benefit to such institution, then I fail to see how there is a direct benefit to a parochial school if public funds are paid to a school bus contractor who allows the children to ride over established public school bus routes. If the latter involves an unlawful expenditure of public funds, as the majority holds it does, then so must the former. As a practical matter, this court has construed the prohibition against direct benefit so as to forbid also any in*952direct benefit. In so doing it has logically committed itself to a harmful and restrictive interpretation of the constitution which will prevent the legislature from effectuating legitimate and needed results in the field of general welfare.
3. Benefit to the School.
This court states flatly that the furnishing at public expense of transportation for a child who attends a non-public school constitutes a direct benefit to such school. This is a gratuitous assumption. It finds no justification in the language of Chapter 39. It finds no support in the record of this case and little, if any, support in the decisions of other courts. Considered purely as an assumption, it is irrational.
In Chapter 39 the legislature authorized transportation for children attending nonpublic schools on a substantially equivalent basis with children attending public schools. It did this for two clearly expressed reasons: to achieve the objectives of the Alaska compulsory education law, and to protect the health and safety of school children.
Both considerations were legitimate ones. A child could comply with the compulsory education statute by attending a private as well as a public school, and he would be excused from the statutory requirement if he lived more than two miles from a school and transportation was not furnished.32 It made sense, then, to make transportation available to the child going to the private school in order to assure that the right of attending such a school, and thus to be in compliance with compulsory education requirements, would be real.
The protection of health and safety was no less a proper concern of the legislature. It is inconceivable that this could be challenged or denied. It is a matter of common knowledge that today’s highways with today’s motor vehicles are extremely dangerous, especially to children. Any rational person knows the hazards a child is subject to in walking long distances in extreme subzero weather, such as exists in the winter months in Fairbanks where this case arose. If proof is necessary, it can be found in the record. There was evidence of a dangerous thoroughfare, with no sidewalks, where children had to walk in order to reach the parochial school. There was evidence of winter temperatures in the vicinity of sixty degrees below zero. There was the incident of first and second grade children walking over one mile from school in weather so cold that two little boys involuntarily urinated and the urine froze to their underwear and clothing. There were cases where other parochial school children had suffered from frozen noses and toes.
These dangers to children are real and not illusory. The provisions made in Chapter 39 have a substantial relation to the public health, safety and welfare. The legislature had the right to concern itself with the needs of children — even those who exercised their constitutional right to attend other than a public school. It had no difficulty in expressing its will — in declaring a legitimate public interest. There was not left to the judiciary the task of imputing to the legislature an undeclared intent and purpose, such as that of aiding or benefiting private schools. It is not the prerogative of this court to say that the purpose of Chapter 39 is not what the legislature said it to be.
There is no evidence in this case creating the slightest inference that transportation of children benefits a school. Thus, the statement by this court that there is such a benefit is not a fact but a mere supposition. And as a supposition it is unwarranted.
The same indefensible assumption appears to have been indulged in by the New York Court of Appeals in Judd v. Board of Education, a decision upon which the majority of this court appears to rely. In that case it was said:
“ * * * Free transportation of pupils induces attendance at the school. *953The purpose of the transportation is to promote the interests of the private school or religious or sectarian institution that controls and directs it. ‘It helps build up, strengthen and makes a success of the schools as organizations.’ * * * Without pupils there could be no school. It is illogical to say that the furnishing of transportation is not an aid to the institution while the employment of teachers and furnishing of books, accommodations and and other facilities are such an aid. ⅛ * *»33
I fail to see how it can be said that the purpose of transportation is to promote the interests of the private school. The legislature, in Chapter 39, has said that the purpose of transportation is to assist children in reaching their schools and to safeguard their health and safety.
I fail to see how one may properly assume that if transportation is not provided for children attending the Immaculate Conception parochial school at Fairbanks that the school would provide it at school expense. I could just as readily and properly assume that in this situation the parents would furnish transportation at their expense.
I do not see the justification for assuming that if a specified number of children dropped out of the parochial school because of lack of public transportation, that this would result in detriment to the school. One would be as justified in assuming that in such circumstances those children’s places would be promptly filled by other children who had desired to attend but had been unable to because of crowded classrooms.
If public funds had been used for the construction or maintenance of the Fairbanks parochial school, then I could see where there would be a direct benefit to the school. But I fail to see where there is any benefit when public monies are spent, not for those purposes, but solely for the purpose of aiding children in getting to the school. It seems to me that as children are encouraged to attend school and are given assistance in getting there, there will be an increased need and demand for additional school facilities. This, logically, will result in additional cost to the school. Thus, the money spent by the state for transportation of school children cannot really benefit the school. The effect of such transportation, if more children will attend school when transported, will not be advantage and profit, but will be just the opposite — increased costs and expenses.
The practical holding in Judd was that as children are assisted in reaching school, there results an increased enrollment, and that this benefits the school because it would “build up”, strengthen and make successful the school as an organization.”34 But even if it could be established that Chapter 39 had a substantial effect on the enrollment in the Immaculate Conception School at Fairbanks, this would not be a “benefit” in the constitutional sense. The fact that more children attend a school does not necessarily aid the school. In fact, I would think that this would have the opposite effect by increasing the demands on the school and the costs of operation. It would be only when the school was able to find ways of meeting those additional costs, without help from the state, that the results mentioned in the Judd case might be attained.
The transportation of children to school, whether it is by the parents or by the state, does not promote the advantage, prosperity or good of the school, despite the statement in the Judd decision that “without pupils there could be no school.” An extension of this truism is that without a school there would be no expense of providing a school. I cannot see, then, the existence of any benefit, other than to the child and to society, in aiding the child in reaching a school which would not exist if children were not there to receive edu *954cation, and which would exist, if children were there, only at considerable cost.
In an effort to bolster its conclusion that transportation directly benefits a school the majority of this court also relies upon arguments made in minority, dissenting opinions in tire Everson case— both in tire New Jersey Court of Errors and Appeals35 and in the United States Supreme Court.36 I fail to see where those arguments aid this court in its conclusion. But if they are thought to be of assistance, then as applied to the issue involved here they amount in substance to this: (a) Payments made for text books, school lunches, athletic equipment, teachers’ salaries, tuitions, buildings, equipment, and necessary materials presumably benefit the child, (b) But those payments also constitute a direct benefit to the school, (c) Therefore, since transportation directly benefits the child, it also directly benefits the school.
Such an argument, of course has no substance. It says that since certain things directly benefit both the child and the school, then other things related to education which directly benefit the child also must necessarily directly benefit the school —whether in fact this is so or not. Obviously this won’t stand the test of logic.
In relying upon such unsound reasoning, I think the court has lost sight of what is really involved in this case. The point is not that payments for textbooks, school lunches, teachers’ salaries, buildings, etc., do not constitute a direct benefit to the school. Those things are not involved in this action. What is involved, and the only thing, is whether transportation confers a direct benefit on a school. I say that transportation directly benefits a child and his parents; but that there is no basis in fact or reason for holding that it also directly benefits a school. That is the point.
In a final attempt to vindicate its claim that transportation of children confers a direct benefit upon a school, the court states that this was the view expressed by the courts of Delaware, New York, Oklahoma, Washington and Kentucky. I think that the decisions made by those courts furnish little, if any, support for the majority’s point of view.
There are only two decisions that have any real pertinency, and they are of no-assistance. In New York, aid or support to a religious school, “directly or indirectly”, was prohibited by the constitution. In passing upon the validity of a transportation statute, the New York Court of Appeals obviously considered that transportation constituted an indirect and not a direct aid. The court said:
“Aid or support to the school ‘directly or indirectly’ -is proscribed. The two words must have been used with some definite intent and purpose; otherwise why were they used at all ? Aid furnished ‘directly’ would be that furnished in a direct line, both literally and figuratively, to the school itself, unmistakably earmarked, and without circumlocution or ambiguity. Aid furnished ‘indirectly’ clearly embraces any contribution, to whomsoever made, circuitously, collaterally, disguised, or otherwise not in a straight, open and direct course for the open And avowed aid of the school, that may be to the benefit of the institution or promotional of its interests and purposes * * * The purpose of the transportation is to promote the interests of the private school or religious or sectarian institution that controls and directs it.” 37
Similarly, in Oklahoma there was a constitutional prohibition against the use of *955public money for the use or benefit, directly or indirectly, of any sectarian institution. The Supreme Court of Oklahoma did say that “The appropriation and directed use of public funds in transportation of public school children is openly in direct aid to public schools 'as such’”, and that when such aid was extended to a sectarian school there was a clear violation of the constitution.38 But it followed this by also stating that its conclusion was “fully supported by the reasoning and conclusion” in the New York case of Judd v. Board of Education.39 The Judd case furnished no such support, since its holding was that transportation conferred aid that was indirect, and not direct. Hence, the Oklahoma court’s view that there was direct aid is not convincing.
Decisions of the courts of Delaware.. Kentucky and Washington40 are of even less value, since none of the constitutional provisions involved used either the words “direct” or “indirect.” In addition, Washington relied in major part on the Judd decision, and Kentucky, upon the Gurney case in Oklahoma which in turn had based its conclusion on Judd.
The majority has failed to point to any clear cut decision of another court where there was directly involved the question of whether transportation amounted to direct or indirect aid to a school, and where the determination was made that it was direct aid. It was only in the Judd case that this was given any real consideration, and the decision there can be used only as precedent for a determination that transportation confers an indirect benefit upon a school. The Alaska constitution does not forbid that.
The holding that transportation of children, as authorized by Chapter 39, confers any benefit upon a school is indefensible, in fact and in reason. I submit that the majority of this court has rendered a judgment on social policy which properly should be left to the legislature. In practical effect the court has held that the legislature may not provide for the public welfare despite the fact that it possesses this authority, both traditionally and under the state constitution. The court does not have the power on such grounds to nullify a legislative act, for to concede the power would be to make the court sovereign over the legislature, the constitution and the people, and convert the government of this state into a judicial despotism.
4. Legislative Purpose.
The court is critical of one of the legislative purposes expressed in Chapter 39, i. e., the protection of the health and safety of all school children in Alaska. It points out that no transportation is provided for non-public school children who do not live along public school bus routes, nor for those children who live within one and one-half miles from the schools they attend.41 The court concludes from this that Chapter 39 does not effectuate the announced legislative intent.
I do not know what purpose is served by this portion of the majority’s opinion, unless it was intended to suggest by inference that the legislature had some ulterior motive in enacting the statute — -its stated objective being a mere fiction — and that for this reason the act was not an appropriate exercise of police power or did not really serve a public purpose.
*956Long prior to the enactment of Chapter 39 transportation for school children was provided by virtue of a law conferring upon the Territorial Board of Education the power and authority to “Provide for the transportation of pupils who reside a distance from established Schools.” 42 In its practical operation this statute was construed as applying to children attending public schools, but even here all public school children did not receive the benefits of the law. Under limitations prescribed by the Board of Education, children were permitted to ride school buses only if they lived beyond a certain distance from their schools, and other children were afforded no transportation if there were not a sufficient number of them living in a certain area to justify the establishment of a transportation route. This is precisely the situation contemplated by existing regulations of the Commissioner of Education. They provide that a transportation route may not be established where there are fewer than eight children who are residents living along a regularly maintained highway; that extensions to routes already established may not be made unless there are at least three children and the extension is a regularly maintained highway; that a route extension may not be established for a one-way distance of less than one mile; and that a transportation route must be discontinued if the average number of children transported falls to five or below for two consecutive months.43
Thus, the fact that literally “all” school children in Alaska were not given transportation under Chapter 39 is not a circumstance peculiar to children attending nonpublic schools. It is applicable to the same extent to children attending public schools. It is apparent, then, that when the legislature in 19SS for the first time extended the assistance of transportation to non-public school children, and spoke of “all school children in Alaska”, it was expressing its legitimate concern for a class of children who up to that time had been discriminated, against. The phrase “all school children”’ obviously was intended to refer to the fact that all children, regardless of whether they attended a public or non-public school, were-entitled to transportation if they were otherwise qualified under applicable regulations of the Board or Commissioner of Education. It was never intended that children attending non-public schools would receive benefits over and above those accorded the children attending public schools-If this had been the effect of the statute, there is little doubt but that the court would be even more critical of such an arrangement because of the resulting discrimination against public school children.
The majority, therefore, is not justified in stating that Chapter 39 does not effectuate the intent of the legislature expressed therein. But even if this were so as it relates to health and safety, the statute still would not fail for a lack of a proper legislative motive. The act does not relate only to health and safety; one of its declared purposes is to “achieve the objectives of the compulsory education laws of Alaska.” 44 This alone would be a sufficient consideration; for legislation intended to facilitate the opportunity of children to get to school, both public and non-public, serves a distinct public purpose.45
The majority makes a further attempt to justify its criticism of the legislative objective by stating that neither inclement weather nor highway traffic hazards were used as a justification for the first law passed in Alaska to provide transportation for school children. The court states that distance from school seems to have been the motivating force for legislation at that time.
I have no quarrel with the proposition that distance may have been a prime factor. *957But this does not mean that health and safety were not legitimate factors. If one thinks only a little about winter weather conditions and the hazards of automobile traffic, it should be apparent that as the distance a child must travel by foot increases so do the hazards to his safety. Distance bears such a real and substantial relation to health and safety that the two cannot be considered as separate motivating forces which influence legislatures to provide transportation for school children. In the light of realities of contemporary living, it is astounding that the court would suggest that health and safety were not factors which the legislature had in mind in authorizing transportation of school children at public expense.
Chapter 39 in fact has a real and substantial relation to the health, safety and welfare of school children, despite the majority’s suggestion to the contrary. This court is not justified in denouncing the legislative motive or the legislative arrangement because literally “all” school children in this state are not transported to their schools. The legislature may do what it can to accomplish what is deemed necessary for the public welfare, and stop short of those cases where the detriment to a few, not afforded state aid, is considered less important than the expense or inconvenience to the state which might result if the rule laid down were mathematically exact. Transportation of school children is an expensive undertaking 46, and the legislature may well have felt that the state could not afford to provide transportation for every child in the state and for every distance traveled. “The problems of government are practical ones and may justify, if they do not require, rough accommodations, — illogical, it may be, and unscientific.” 47 It is not within the proper scope of judicial review for this court to sit as a superlegislature and decide whether the statute is fair or unfair, or wise or unwise, or whether it has gone far enough in accomplishing a public purpose.48
5. Conclusion.
The basic, underlying controversy which gave rise to this litigation is not disclosed by the briefs or by the opinion of this court. But it does exist and should be recognized.
Those who would deny transportation for children attending non-public schools are not concerned with transportation as such. Nor are they truly solicitous about the relatively minor expense to the state which will result from the operation of Chapter 39.49 Their real anxiety, and the real issue in this case, has to do with the very existence of the sectarian or religious educational institutions, and the belief of some persons in the supremacy of public education administered and controlled by the state.
This was evident from proceedings of the Constitutional Convention. Delegate Proposal No. 6, mentioned earlier in this opin*958ion, did not deal solely with the subject of the use of public funds for private schools. That proposal spelled out in detail how education should be handled in the new State of Alaska. Section 2 provided that "The State's responsibility for the education of its people is here declared to be clear, positive and final." Section 4 would have required the legislature to provide "for the compulsory attendance at some public school, unless other state approved means of education are provided." Section 6 would have permitted the legislature to provide "for the establishment of private schools by individuals, groups, institutions or corporations", but only "under charter from the state." That section also would have required the state to establish undefined "minimum educational standards for such schools", and would have allowed the teaching in private schools of principles over and above the state requirements, provided that such teachings "were not otherwise contrary to the statutes or the constitution of the state."
During debate on the floor of the convention, Delegate Coghill, a co-author of proposal No. 6, stated that he was President of the Association of Alaska School Boards and "one of the framers of that twelve-point program we developed in Anchorage last October."50 That program, which had been widely disseminated among the delegates, was a five page document entitled "Basic Principles of Education to be Included in the Constitution for the State of Alaska", and it stated that it had been formulated and approved by the Alaska School Boards Association and the Superintendents' Advisory Commission at a meeting in Anchorage in October 1955. Since the recommendations and discussion in this document coincide in relevant part with Delegate Proposal No. 6, it is fair to presume that those portions of the proposal discussed here reflected the philosophy of education, not just of the delegates who submitted the proposal, but also of the official representatives of public education in Alaska.
The basic thesis which runs through the proposal is that education is primarily, if not exclusively, the prerogative and function of the state; that the state is supreme in this field. Evident is the clear implication that the state should have the right to determine in the first instance whether a private school should even be allowed to exist, and if so, then what it should or should not be permitted to teach. Perhaps there is even implicit here a resentment or fear toward the existence of the private schools-a thought that was revealed by Delegate Coghill when, during debate on the floor of the convention, he said that "sectarianism segregation in our educational system is bad for the children",51 and "The people that are sending their children to private parochial or any other type of institution are segregating themselves from the public and therefore they should not derive the benefit from the tax dollar." 52
Such a philosophy of education was totalitarian in concept; the objective obviously being to standardize children by forcing them, practically, to accept instruction from public school teachers only. It ignored the fact that the child is not the mere creature of the state; it denied the natural right of parents to direct the destiny of their children. It had no proper place in the organic law for the State of Alaska, as the convention ultimately decided by rej ect-ing the proposal.
That constitutional history is important to consider in the background of the present controversy over bus transportation. The effort to place all education under the complete dominion of the state failed to succeed as a constitutional measure. The United States Supreme court's decision in Pierce v. Society of Sisters, 1925, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, was a bar to any possible legislative enactment that would compel attendance at public schools only. The next logical step, then, was to *959restrict as far as possible the enjoyment of the right to education not exclusively controlled by the state. The opponents of the right thus sought to bar the extension of general welfare benefits to children who did not attend a public school by attempting to insert a constitutional provision against the use of public funds for any indirect benefit to a private school. They were unsuccessful at the convention, but their defeat has now been turned into victory by the court’s decision in this case.
In the Pierce case the Supreme Court of the United States held that a statute which compelled attendance at public schools unreasonably interfered with the liberty of parents and guardians to direct the upbringing of children under their control. The court said:
“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. 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.” 53
This liberty of parents to choose the kind of education to be given to their children, so clearly stated in Pierce, has lost much of its effectiveness and meaning by the majority’s decision in this case. Because of the economic and social realities of contemporary living, there undoubtedly will be parents who will now find it impracticable or impossible to continue sending their children to the parochial school. To them, the constitutional and natural right to educate their children in schools of their own selection, and to thus express their conviction of the importance of religious and spiritual ideals in the formation of character, will be an abstract thing, without practical meaning or value.
The transportation of school children provided by Chapter 39 is a benefit common and necessary to public and non-public school children alike. To grant this assistance to some children, and deny it to others unless they forego their freedom of choice of schools, embodies the element of unfair treatment which is so foreign to our American tradition. The concept of liberty and equality of man was expressed in the high purpose and noble convictions of our forefathers who signed the Declaration of Independence. It was again given expression with classic dignity by the men and women who formulated the constitution for the State of Alaska when they said that “This constitution is dedicated to the principles that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry; that all persons are equal and entitled to equal rights, opportunities, and protection under the law; * * 54
This truly is the American idea — the American tradition. It is the reason for our nation’s being; it has been America’s strength. But today in Alaska that idea has become an abused phrase. The reality behind it has been obscured by the court’s decision in this case; some of its power and meaning have been lost. Those persons who exercise their inherent right to direct the destiny of their children must now pay the price of being denied the equal rights to which the constitution says they are entitled.
This court’s decision is a grave injustice to many citizens of this state.
The judgment below should be affirmed.
. 37 Stat. 514 (1912), 48 U.S.O.A. § 77 (1952).
. Alaska Const, art. YII, § 1.
. Alaska became a state on January 3, 1959. Exec.Proclamation No. 3269, 24 Fed.Reg. 81 (1959), 48 U.S.O.A. note preceding section 21, Alaska Statehood Act, 72 Stat. 339 (1958), 48 U.S.O.A. preceding section 21. At that moment the State Constitution became effective and superseded the Alaska Organic Act.
. 1 Willoughby, Constitutional Law, § 26 at 42-43, and § 27 at 47 (2d ed. 1929).
. Marbury v. Madison, 1803, 1 Cranch 137, 177-178, 5 U.S. 137, 177-178, 2 L.Ed. 60, 73; Pollock v. Farmers’ Loan & Trust Co., 1895, 157 U.S. 429, 554, 15 S.Ct. 673, 39 L.Ed. 759, 810; 16 C.J.S. Constitutional Law § 92.
. See Wall v. Close, 1942, 201 La. 986, 10 So.2d 779, 783.
. See People ex rel. McClelland v. Roberts, 1895, 13 Misc. 448, 34 N.Y.S. 641, 650, affirmed in 1896, 148 N.Y. 360, 42 N.E. 1082, 1085, 31 L.R.A. 399.
. Webster, New International Dictionary, Unabridged, at 986 (2d ed. 1960).
. Norton v. Shelby County, 1886, 118 U.S. 425, 442, 6 S.Ct. 1121, 30 L.Ed. 178, 186; Chicago, I. & L. R. Co. v. Hackett, 1913, 228 U.S. 559, 566, 33 S.Ct. 581, 57 L.Ed. 966, 969.
. Ex parte Bustillos, 1920, 26 N.M. 449, 194 P. 886, 889.
. 1 Willoughby, Constitutional Law, § 8 at 11 (2d ed. 1929).
. Phipps v. School District of Pittsburgh, 3 Cir., 1940, 111 F.2d 393, 395. And see also J. A. Dougherty’s Sons, Inc. v. Commissioner of Internal Revenue, 3 Cir., 1941, 121 F.2d 700, 702.
. Warring v. Colpoys, 1941, 74 App.D.C. 303, 122 F.2d 642, 646, 136 A.L.R. 1025.
. Chicot County Drainage District v. Baxter State Bank, 1940, 308 U.S. 371, 374, 60 S.Ct. 317, 318, 84 L.Ed. 329, 332-333. See also National Labor Relations Board v. Rockaway News Supply Co., Inc., 1953, 345 U.S. 71, 77, 73 S.Ct. 519, 97 L.Ed. 832, 837.
. Everson v. Board of Education, 1947, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711.
. 31 Stat. 322 (1900), 48 U.S.C.A. § 101.
. Lindeberg v. Howard, 9 Cir., 1900, 146 F. 467, 472, 2 Alaska Fed. 597, 604; Krooger v. Twin Buttes R. Co., 1911, 13 Ariz. 348, 114 P. 553, 554; Hawaiian Tuna Packers v. International L. & W. Union, D.C.D.Haw.1947, 72 F.Supp. 562, 565. See also Missouri, K. & T. Ry. Co. v. Walker, 1911, 27 Okl. 849, 113 P. 907, 908.
. 1 Willoughby, Constitutional Law, § 81, at 52 (2d ed. 1929).
. 1 Willoughby, Constitutional Law, supra, at 52, and § 82 at 54. See also 2 Sutherland, Statutory Construction, § 5001, at 481 (3d ed. 1943). •
. Knowlton v. Moore, 1900, 178 U.S. 41, 95, 20 S.Ct. 747, 768, 44 L.Ed. 969, 991. See also Shelley v. Kraemer, 1948, 334 U.S. 1, 23, 68 S.Ct. 836, 92 L.Ed. 1161, 1186.
. Alaska Constitutional Convention, Proposal No. 6, Education, November 17, 1955.
. Alaska Constitutional Convention, Report of Committee on Preamble and Bill of Rights on Committee Proposal No. 7, December 15, 1955.
. Alaska Constitutional Convention Minutes, Jan. 9, 1956, p. CO.
. Id. at 53.
. Id. at 57.
. Id. at 62-63.
. Id. at 67.
. Id. at 67-68.
. Id. at 70-71.
. Id. at 76. “Support or benefit”, not modified by “direct” or “indirect”, is the language used in tlie Territorial Organic Act, as noted earlier in this opinion.
. Alaska Constitutional Convention Minutes, Jan. 9, 1956, p. 76.
. § 37-7-1, ACIA 1949.
. 1938, 278 N.Y. 200, 15 N.E.2d 576, 582, 118 A.L.R. 789.
. Judd v. Board of Education, supra note 33, 15 N.E.2d at page 582.
. Everson v. Board of Education, 1945, 133 N.J.L. 350, 44 A.2d 333, 338-343.
. Everson v. Board of Education, 1947, 330 U.S. 1, 47-49, 67 S.Ct. 504, 91 L.Ed. 711, 740.
. Judd v. Board of Education, 1938, 278 N.Y. 200, 15 N.E.2d 576, 582, 118 A.L.R. 789, reargument denied 1938, 278 N.Y. 712, 17 N.E.2d 134.
. Gurney v. Ferguson, 1941, 190 Okl. 254, 122 P.2d 1002, 1004.
. Id., 122 P.2d at page 1004.
. State ex rel. Traub v. Brown, 1934, 6 W.W.Harr. 181, 36 Del. 181, 172 A. 835, writ of error dismissed 1938, 9 W.W. Harr. 187, 39 Del. 187, 197 A. 478; Sherrard v. Jefferson County Board of Education, 1942, 294 Ky. 469, 171 S.W.2d 963; Mitchell v. Consol. School Dist. No. 201, 1943, 17 Wash.2d 61, 135 P. 2d 79, 148 A.L.R. 612; Visser v. Nooksack Valley School Dist. No. 506, 1949, 33 Wash.2d 699, 207 P.2d 198.
. Tbe Commissioner of Education is authorized by regulation to enter into contracts for the transportation of pupils “who reside a distance of one and one-half miles or more from the school they are required to attend.” 4 Alaska Adm. Code § 100(a), at 37.
. SLA 1983, ch. 114, § 1 (§ 87-2-8, ACLA 1949).
. 4 Alaska Adm.Code § 100(a), at 87.
. SLA 1955, ch. 89, § 1.
. Everson v. Board of Education, 1947, 830 U.S. 1, 7, 67 S.Ct. 504, 91 L.Ed. 711, 719; Snyder v. Town of Newtown, 1960, 147 Conn. 374, 161 A.2d 770, 774, appeal dismissed 81 S.Ct. 692, 5 L.Ed.2d 688.
. See note 49, infra.
. Metropolis Theater Co. v. City of Chicago, 1913, 228 U.S. 61, 69, 33 S.Ct. 441, 443, 57 L.Ed. 730, 734.
. Day-Brite Lighting Co. v. State of Missouri, 1952, 342 U.S. 421, 423, 72 S.Ct. 405, 96 L.Ed. 469, 472; Berman v. Parker, 1954, 348 U.S. 26, 32, 75 S.Ct. 98, 99 L.Ed. 27, 37; California State Auto Ass’n, etc. v. Maloney, 1951, 341 U.S. 105, 110, 71 S.Ct. 601, 95 L.Ed. 788, 793; Watson v. Buck, 1941, 313 U.S. 387, 403, 61 S.Ct. 962, 85 L.Ed. 1416, 1425; Sunshine Anthracite Coal Co. v. Adkins, 1940, 310 U.S. 381, 394, 60 S.Ct. 907, 84 L.Ed. 1263, 1272.
. The appellants have furnished this court with a copy of a memorandum, dated April 27, 1960, from Dr. Theo J. Norby, Commissioner of Education, to Ralph E. Moody, Attorney General of Alaska. This memorandum indicates that if the lower court’s decision had been upheld, the additional expense of providing transportation for non-public school students in 1961 would be $17,-937.25. It is interesting to note that the total legislative appropriation for “pupil transportation” in 1960 was $1,-197,197.00 (SLA 1960, ch. 182, § 1, at 289), and that the amount requested in the Governor’s budget for fiscal year 1961-62 was $1,300,000 (House Bill 42, Eirst Session, Second Alaska Legislature, 1961, at 6).
. Alaska Constitutional Convention Mm-utes, Jan. 9, 1956, p. 58.
. Id. at 50.
. Id. at 64.
. Pierce v. Society of Sisters, 1925, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070, 1078.
. Alaska Const. art. I, § 1.