On appeal. A bill in equity was brought by thirteen taxable inhabitants of the City of Augusta against the inhabitants of that city and its mayor and treasurer. The plaintiffs by their bill seek to enjoin the defendants from carrying into effect the provisions of an ordinance and order passed by the Augusta City Council on June 17, 1957 relating to transportation of pupils to and from nonpublic schools. The plaintiffs further seek to have this ordinance and appropriation order decreed as illegal, invalid, void and of no effect. After a hearing on the bill, answer and replication, the justice below dismissed the bill and from this dismissal the plaintiffs seasonably appealed.
The ordinance and order upon which this litigation is based reads as follows:
“WHEREAS, children residing in the City of Augusta and attending the public schools pursuant *153to and in compliance with the compulsory school-attendance laws of the State of Maine, and who reside at distances from the schools rendering their conveyance necessary, are presently afforded, at public expense, conveyance by motor vehicle to and from public schools; and
WHEREAS such conveyance is provided for the conservation of the comfort, safety and welfare of the children thus transported, and
WHEREAS such conveyance is not afforded to children residing in the City of Augusta who are attending schools other than public schools under and in compliance with the compulsory school-attendance laws of the State of Maine and who reside at unreasonable distances from the schools which they attend;
NOW THEREFORE, in order to facilitate attendance at school pursuant to the compulsory school-attendance laws of the State of Maine, by such children for whom such conveyance is not now provided and to assist and protect such children while they are on the highway in order to attend school under the compulsory school-attendance law of the State of Maine,
BE IT ORDAINED BY THE CITY COUNCIL of the City of Augusta, as follows:
ORDERED, That (a) The City of Augusta shall make available conveyance by motor vehicle to any child residing in Augusta (1) who is a pupil of elementary grade attending a non-public school (including a so-called ‘parochial’ school) pursuant to and in conformity with the compulsory school-attendance laws of the State of Maine, and (2) who resides more than one mile from the said school which such child attends.
(b) Such conveyance shall be so provided as to conserve the health, safety and welfare of the children transported.
(c) The Mayor of the City of Augusta is authorized to make contracts for a period of one year, *154to employ such persons and to take such other and further action as may be necessary to effectuate the matters herein contained.
(d) There is herewith appropriated from the contingent fund of the City of Augusta the sum of $250.00 to be expended for the purposes and matters herein provided during the remainder of the year, 1957.”
The pertinent portion of the City Charter of Augusta reads:
“.....and may ordain and publish such acts, laws and regulations not inconsistent with the Constitution and laws of this state, as shall be needful to the good order of said body politic;-----.”
Chap. 75, Sec. 1, P. L., 1919.
The factual aspect of the case is provided by an agreed statement of facts, in addition to which there appears the testimony of the Superintendent of Schools of Augusta. It so happens that the private schools here involved are parochial schools.
The agreed statement of facts explains in great detail the supervision and operation of the parochial schools in Augusta. It is a matter of public knowledge that the parochial schools are controlled and operated by the Roman Catholic Church. They are in effect private schools as distinguished from public schools and in the view which we take of this case are within the same category as any other private schools in the State. These parochial schools meet the standards of compulsory education and the pupils may lawfully attend them in lieu of attendance at public schools.
The appellants contend (1) that the ordinance and appropriation order of June 17, 1957 is illegal and is not authorized by either the statutes of the State of Maine or the Augusta City Charter; (2) that the ordinance and order is in violation of the Constitution of the State of Maine; (3) *155that the ordinance and order is in violation of the Constitution of the United States. The contention of the appellees, briefly stated, is that the purpose of enactment of the ordinance and order was to provide transportation for private school children in order to conserve their health, safety and welfare, and that the City Council for the City of Augusta had authority to enact the ordinance and order as an exercise of its police power.
This case resolves itself into a single basic legal issue. Did the council have the authority to enact the ordinance by reason of police power?
It is agreed between the parties that the Legislature has not, either by charter or statute, given the City of Augusta by express terms the authority to pass any ordinance providing for the transportation of pupils to or from private schools.
The State controls the public schools and, to a substantial degree, maintains control and supervision over the private schools of the State. It compels education by providing (Chap. 41, Sec. 92, E. S., 1954, as amended) that every child between the 7th and 15th anniversaries of his birth shall attend some public day school. A child may satisfy this requirement if he obtains equivalent instruction for a like period of time in a private school in which the course and method of study have been approved by the designated educational authorities.
The Constitution of Maine, Art. VIII imposes the duty upon the Legislature to promote the cause of education. This, in effect, is in the nature of a constitutional mandate. In 1876 the then members of the Law Court of Maine had occasion to give their opinion relating to the authority and responsibility of the Legislature on the subject matter of schools and education. This Opinion of the Justices is recorded in 68 Me. 582. A pertinent quotation from the opinion is in the following language:
*156“In the constitution, it is declared that a general diffusion of education is essential to the preservation of the liberties of the people. By its very language, it would seem that the ‘general diffusion of education’ was to be regarded as especially a ‘benefit’ to the people. If so, then the legislature has ‘full power’ over the subject matter of schools and of education to make all reasonable laws in reference thereto for the ‘benefit of the people of this state.’ ” (Emphasis ours.)
In further support of the fact that the sovereign has maintained control of schools and education through the years is the following statement by the justices in their opinion:
“Accordingly, from the first institution of the government to the present day, the general control of schools, and the determination of what shall be a suitable provision by the towns for their support, has been fixed by legislative enactment.” (Emphasis ours.)
It is important and advisable to review the statutory laws of the State, with the purpose and thought in mind of determining evidence of intention on the part of the State to maintain general control of education, as to both public and private schools. All legislation affecting the system of education in the State is compiled in Chap. 41, R. S., 1954, as amended. The chapter is entitled “Department of Education.” We propose to cite such portions of this chapter (Chap. 41) as are pertinent in demonstrating the control and supervision which the State maintains through legislative enactments over the State’s educational system.
Regarding the duties of the Commissioner of Education, Sec. 11, Sub-sec. VII, as amended:
“VII. To prescribe the studies to be taught in the public schools and in private schools approved for attendance and tuition purposes, reserving to superintending school committees, trustees or other officers in charge of such public or private schools *157the right to prescribe additional studies, and the course of study prescribed by the commissioner shall be followed in all public schools and in all private schools approved by the said commissioner for attendance or tuition purposes; provided, however, that upon the approval by the said commissioner of any course arranged by the superintending school committee of any town, or by the trustees or other officers of any private school, said course shall be the authorized course for said town or private school; provided further, that the basic language of instruction in all schools, public and private, shall be the English language; and provided further, that American history and civil government, including the constitution of the United States and the declaration of independence, the importance of voting and the privileges and responsibilities of citizenship, shall be taught in all schools of elementary and secondary grades, both public and 'private, and that American history and civil government shall be required for graduation from all elementary schools, both public and private. Nothing in this section shall be construed to prohibit the teaching in elementary schools of any language as such. It is further provided that a course in geography and the natural and industrial resources of Maine shall be taught in at least one grade from 7 to 12, inclusive, in all school systems, both public and private.” (Emphasis ours.)
Pertaining to other school functions, we find (Sec. 14):
“----The superintendent of schools in each town shall procure the conveyance of all elementary school pupils residing in his town, a part or the whole of the distance, to and from the nearest suitable school, for the number of weeks for which schools are maintained in each year, when such pupils reside at such a distance from the said school as in the judgment of the superintending school committee shall render such conveyance necessary. In all eases, conveyance so provided shall conserve the comfort, safety and welfare of *158the children conveyed and shall be in charge of a responsible driver who shall have control over the conduct of the children conveyed. Contracts for said conveyance may be made for a period not to exceed 3 years. Provided, however, that the superintending school committee may authorize the superintendent of schools to pay the board of any pupil or pupils at a suitable place near any established school instead of providing conveyance for said pupil or pupils, when in their judgment it may be done at an equal or less expense than by conveyance.----.” (Emphasis ours.)
Sec. 43, as amended:
“Where the distance from the place of temporary residence to the school is more than 2 miles and transportation is deemed advisable by the superintending school committee or school directors, the superintendent of schools shall report the same to the commissioner with such other information as may be required and if so directed by the commissioner shall procure transportation for such child or children or, if transportation is inadvisable, board in lieu thereof;---.” (Emphasis ours.)
Sec. 55: This section requires chest x-ray examinations for all superintendents of schools, supervisors, teachers, school nurses, janitors, school bus drivers and persons employed in the preparation of school lunches. This provision specifically applies to both public and private schools.
Sec. 92, as amended, is the compulsory education section requiring school attendance of children between 7 and 15 years of age and under some circumstances between the ages of 15 and 17. Under this section a child is not compelled to attend a public school provided that:
“---the child obtains equivalent instruction, for a like period of time, in a private school in which the course of study and methods of instruction have been approved by the commissioner, or in any *159other manner arranged for by the superintending school committee or the school directors with the approval of the commissioner. Children shall not be credited with attendance at a private school until a certificate showing their names, residence and attendance at such school, signed by the person or persons having such school in charge, shall be filed with the school officials of the administrative unit in which said children reside.” (Emphasis ours.)
Sec. 101, as amended, concerns itself in part with transportation of pupils to free high schools, while Sec. 119 treats of transportation to be provided by community school committees. The provisions of Sec. 164 relating to the education of children in unorganized territory provides in part for “board and transportation of elementary school pupils.” (Emphasis ours.) A careful reading of the provisions of Chap. 41 will demonstrate that the Legislature has established a definite pattern for the creation and growth of the educational system of the State in all its varied and intertwining aspects.
From our study of the laws pertaining to education, we are convinced that the Legislature which enacted the various provisions intended that no municipality should regulate by ordinance or order any subjects which would affect or influence general education unless permitted to do so by an express delegation of power. To determine otherwise would be to disregard the clear intent of the Legislature and invite an interference on the part of any municipality within the State with the State’s responsibility and constitutional duty to exert its “ ‘full power’ over the subject matter of schools and of education-----.”
The State educational policy cannot and must not be interferred with by any subordinate governing body. Mc-Quillin-Municipal Corporations, Vol. 5, Sec. 15.21:
“---Nor, under a general grant of power, can a municipal corporation adopt ordinances ‘which in*160fringe the spirit, or are repugnant to the policy, of the state as declared in its legislation.’ It follows that if the state has expressed through legislation a public policy with reference to a subject, a municipality cannot ordain in respect to that subject to an effect contrary to, or in qualification of, the public policy so established unless there is a specific, positive, lawful grant of power by the state to the municipality to ordain otherwise.” (Emphasis ours.)
The Legislature has seen fit to make the conveyance of pupils as much a component part of the public school program as the furnishing of text books, employment of teachers, prescribing subjects to be taught, construction and maintenance of school buildings and all other activities which compose a complete educational program.
The City of Augusta is a body politic and has only that authority to act which is given to it by the Legislature, as evidenced by its charter or by statute. The power of a town or city to appropriate money and to pass rules, orders and by-laws was first established in Maine by the provisions of Chap. 114, Sec. 6 of the Laws of Maine 1821. Sec. 6 reads as follows:
“Be it further enacted, That the citizens of any town, qualified as aforesaid, at the annual meeting for the choice of town officers, or at any other town meeting, regularly warned, may grant and vote such sum or sums of money as they shall judge necessary for the settlement, maintenance and support of the ministry, schools, the poor, and other necessary charges, arising within the same town, to be assessed upon the polls and property within the same, as by law provided; and they are also hereby empowered to make and agree upon such necessary rules, orders and bye-laws, for the directing, managing and ordering the prudential affairs of such town, as they shall judge most conducive to the peace, welfare and good order thereof; and to annex penalties for the observance of *161the same not exceeding five dollars for one offence, to enure to such uses as they shall therein direct: Provided, They be not repugnant to the general laws of this State.”
It is significant to note that there has been no substantial departure from the State’s maintenance of authority over towns and cities in 137 years. The revision of the general laws relating to municipalities enacted in 1957 (R. S., Chap. 90A, P. L., 1957, Chap. 405) did no more than to consolidate and codify the powers and duties of municipalities. This statute did not become effective until subsequent to the eflective date of the ordinance concerned in this case. We mention this 1957 legislation for the purpose of noting that there are no provisions contained therein, either expressed or implied, giving authority to the City of Augusta to pass the ordinance and order, had the legislation been in effect at the time of passage. The municipalities are still subject to the authority of the sovereign and have only those powers which are specifically delegated by the Legislature. See Spaulding v. Peabody, 153 Mass. 129. In Frankfort v. Lumber Co., 128 Me. 1, on page 4, the court said:
“ ‘A municipal corporation has no element of sovereignty. It is a mere local agency of the State, having no other powers than such as are clearly and unmistakably granted by the law-making power.’ ”
See Alley v. Inhabitants of Edgecomb, 53 Me. 446; Burkett v. Young, et al., 135 Me. 459.
In the case of Lunn, et al. v. City of Auburn, et al., 110 Me. 241, the court in considering the power and authority of the City Council spoke in this manner:
“We think it important to now discover the intention of the Legislature, for the intent of the Legislature is the law.---Further, if the Legislature had intended to confer upon the city council the power it now claims, it certainly would have done *162so by express grant and not by inference from general terms.” (Emphasis ours.)
The authority given by the Charter to the City of Augusta to enact ordinances contains this language: “and may ordain and publish such act, laws and regulations not inconsistent with the constitution and laws of this State, as shall be needful to the good order of said body politic.” Within the meaning of these words or by force of any statute applicable to municipalities must be found the authority for the City Council to pass the ordinance and order. There is no express authority in the language of the Charter and no reasonable inference can be drawn therefrom that the Legislature granted the City Council the power to enact an ordinance providing for conveyance of school children to private schools, nor do the statutes confer a specific right to do so. The Charter negatives rather than affirms the right because it provides that the City may ordain only such acts and laws as are not inconsistent with the “laws of the State.”
The order calls for the appropriation of $250.00 to be paid out of the contingent fund. The purpose of the appropriation is to finance the conveyance of pupils to private schools. Although the appropriation is to be taken from the contingent fund and not school funds, it nevertheless is derived from taxation, and in order to be legally expended, it must be made available by lawful appropriation. Public funds cannot be spent except for purposes authorized by law. This may come about by charter or statutory authorization but the authority must be strictly construed. “The words ‘other necessary town charges,’ do not constitute a new and distinct grant of indefinite and unlimited power to raise money for any purpose whatsoever, at the will and pleasure of a majority. They only embrace all incidental expenses arising directly or indirectly in the due and legitimate exercise of the various powers conferred by statute.” *163Opinion of the Justices, 52 Me. 595. See Gale v. The Inhabitants of South Berwick, 51 Me. 174; Westbrook v. Deering, 63 Me. 231.
The legal rights of municipalities are well defined as to their scope of authority in matters of raising, appropriating and spending public funds. Their powers and authority are determined within the structure of their Charters or by enabling acts. It is to be noted that the statutes have specifically provided for the expenditures of public money by towns and cities generally. There are numerous provisions providing for the financing of many educational activities, among which is the transportation of pupils in the public schools. There is nowhere to be found in the enabling statutes or in the Charter of the City of Augusta any authority, express or implied, for the Council to appropriate any sums for the conveyance of pupils to private schools.
Counsel for the defendants cite the case of Everson v. Board of Education, 330 U. S. 1, as applicable to the facts and circumstances of this case. The Everson case had its origin in the State of New Jersey under a statute authorizing local school districts to make rules and contracts for the transportation of children to and from schools, including the transportation of school children to and from schools other than public schools, excepting those schools which are operated for profit in whole or in part. The statute further provides that when any school district furnishes transportation for public school children from any point in an established school route to any other point on such established school route, the transportation shall be supplied to the school children residing in the district other than public school children, excepting those children who attend private schools operated for profit. The appellee (Board of Education of the Township of Ewing), acting in pursuance to the statute, authorized reimbursement to parents of money paid out by them for bus transportation of their children to pri*164vate schools. A portion of this money expended was for the payment of transportation of pupils to the Catholic parochial schools. The appellant contended that the statute and the resolution passed pursuant to it violated both the State and the Federal Constitutions, thereby presenting as an issue the constitutionality of the statute and the resolution. The Supreme Court of the United States, in a divided opinion, found that the statute and resolution were constitutional. We distinguish the Everson case from the case now under consideration. In the Everson case the State of New Jersey enacted an enabling statute specifically authorizing the Board of Education of school districts to provide transportation for all school children, both those attending public and private schools (except those private schools operated for profit). The issue was the constitutionality of the statute and the resolution. It was not, as in the instant case, that the resolution providing the transportation was passed without statutory authorization. This question was not involved in the Everson case.
The case of Nichols v. Henry, 301 Ky., 434, 191 S. W. (2nd) 930, 168 A. L. R. 1385, also cited by the appellees is based as is the Everson case on an enabling act and thus is distinguishable from the case at bar.
We are satisfied that a properly worded enabling act, authorizing municipalities to expend funds for the transportation of children to private schools not operated for profit, if one were in fact to be enacted by the Legislature, would meet constitutional requirements. In so saying we recognize that the decision of the Supreme Court of the United States in Everson is the law of the land and that the provisions of the Maine Constitution relating to the expenditure of public monies for public purposes and to the separation of church and state, carry no more stringent prohibitions than the First and Fourteenth Amendments to the Federal Constitution. We cannot, however, pass upon *165the constitutionality of a statute which thus far has never been enacted by the Legislature. As already noted, we have searched in vain to find any provision of statute or charter authorizing the City of Augusta to appropriate public funds for transportation of children to private schools.
In our view of the case at bar, we do not reach the issue of the constitutionality of the ordinance and order. The decisive issue here is, did the City Council of Augusta have authority from the Legislature to enact the ordinance and order? We hold that the State of Maine has never, by enabling legislation or by the terms of the City of Augusta Charter, by express grant or implication, empowered or authorized the City Council to enact such an ordinance and order.
It is contended by the appellees that the ordinance and order as passed by the City Council of Augusta was a proper exercise of police power. There is no question but that the City of Augusta has and has always had authority to exercise police power. “The ordinary form of a city charter granting authority to enact ordinances not inconsistent with the Constitution and laws of the State is a delegation of authority to exercise the police power.” Opinion of the Justices, 124 Me. 508. We recognize the sound principles of the proper use of police power and the necessity for it. This does not mean, however, that “police power” when assigned as a reason or authority for the enactment of an ordinance is sufficient to give validation to the act. When an enactment is founded on police power, the resultant legislation must stand the test as to whether it is a proper exercise of such power or not. McQuillinMunicipal Corporations, Yol. 6, Sec. 24.04:
“The term ‘police power’ in a more limited sense, is not conceived to be all governmental power; it does not embrace, for example, the power of eminent domain or the power of taxa*166tion for revenue and appropriation of public funds,----.” (Emphasis ours.)
We cannot, however, subscribe to the use of police power when the end result is to defeat the intent of the Legislature. It is not conceivable that the Legislature when it delegated police power to the City of Augusta intended that it be used as authority to permit the passage of an ordinance providing for the conveyance of pupils to private schools and to use public funds for that purpose. The City Council is attempting to accomplish by police power what it is not authorized to do by its Charter or any enabling act of the Legislature, namely, to transport pupils to private schools. McQuillin-Municipal Corporations, Yol. 6, Sec. 24.46:
“Municipal police power is subject, of course, to limitations, including, of course, those applicable to police power generally. Its exercise must be consistent with the general laws of the State
In this instance a use has been made of police power which is repugnant to and in derogation of the established policy of the State in its general scheme or plan for the promotion of education. McQuillin-Municipal Corporations, Vol. 5, Sec. 15.21:
“---Nor, under a general grant of power, can a municipal corporation adopt ordinances ‘which infringe the spirit, or- are repugnant to the policy, of the state as declared in its legislation.’ It follows that if the state has expressed through legislation a public policy with reference to a subject, a municipality cannot ordain in respect to that subject to an effect contrary to, or in qualification of, the public policy so established unless there is a specific, positive, lawful grant of power by the state to the municipality to ordain otherwise.” (Emphasis ours.)
*167In the case of Fieldcrest Dairies v. City of Chicago, 122 F. (2nd) 132, on page 138, the court had this to say:
“The authorities are uniform that any ordinance which conflicts with any statute or public policy adopted by the State Legislature is invalid. The rule is aptly stated in 2 McQuillin on Municipal Corporations, 572: ‘A Municipal corporation cannot, without special authority, prohibit what the policy of a general statute permits. Nor, on the other hand, can an ordinance permit that which the State’s policy forbids. Consequently under a general grant of power, a municipal corporation cannot adopt ordinances “which infringe the spirit, or are repugnant to the policy of the state as declared in its legislation.” It thus follows that if the state has expressed through legislation a public policy with reference to a subject, a municipality cannot ordain in respect to that subject to an effect contrary to, or in qualification of the public policy so established.---.’ ” (Emphasis ours.)
Since 1821 to the present time the Legislature has been definite and cautious in its delegation of authority to towns and cities. The State has always maintained general control of education, in all its phases, and when use of public funds by towns and cities for school or any other purposes has been permitted, the authorization has been specific and well defined. There has been no uncertainty as to intent. Had the Legislature which enacted the revision of the laws relating to municipalities in 1957, or any Legislature preceding it, intended that municipalities be authorized to pass ordinances providing for transportation of pupils to private schools, it would have said so in clear and unmistakable language. It is not for us to read into the statutes an intent which is obviously not there.
The City Council of the City of Augusta was without legislative authority to enact the ordinance and order providing for the conveyance of pupils of elementary grades *168attending non-public schools and the expenditure of public funds for this purpose would be unlawful.
It has come to the attention of the court that the terms of office of the mayor and city treasurer in office at the time of the commencement of this litigation have terminated. The case has been fully briefed and argued. The case should be remanded to the court below to give reasonable opportunity for the appellants to move to join the present mayor and present city treasurer of Augusta as parties defendant, and thereupon, such motion being granted, a decree may be entered in accordance with this opinion.
The entry will be,
Appeal sustained.
Remanded to the court below for further proceedings in accordance with this opinion.