With the implication in the majority opinion that the plaintiff is not entitled to recover if the school in question is a sectarian rather than a public school, I agree. With the conclusion that upon the facts of this case the trial court was warranted in holding that this was a public and not a sectarian school, I disagree.
As the opinion suggests, a school to be a public school must (1) be under public control and (2) be free from sectarian instruction. It is primarily with regard to its interpretation of this second requisite that I differ from the majority. A child receives instruction by seeing, as well as by hearing. The impressions made upon him by being exposed day in and day out to the sectarian atmosphere implicit in the daily routine, the physical surroundings and the habit of their order worn by the teachers, set forth in the court's finding, may well prove as potent an influence in determining his religious development as would a regularly prescribed course of instruction in formulated precepts. In this connection, this statement by the court in O'Connor v. Hendrick, 184 N.Y. 421, 428, *Page 205 77 N.E. 612, concerning the effect the wearing by nuns of their religious costume while teaching may have upon their pupils, can fairly be said to apply with even greater force in the instant case by reason of the accompanying factors just recited: "There can be little doubt that the effect of the costume worn by these Sisters of St. Joseph at all times in the presence of their pupils would be to inspire respect if not sympathy for the religious denomination to which they so manifestly belong. To this extent the influence was sectarian, even if it did not amount to the teaching of denominational doctrine."
These further statements by Mr. Justice Williams in his dissenting opinion in Hysong v. School District,164 Pa. 629, 660, 30 A. 482, likewise seem peculiarly apropos of the situation before us: "They come into the schools not as common school teachers, or as civilians, but as the representatives of a particular order in a particular church whose lives have been dedicated to religious work under the direction of that church. Now the point of the objection is not that their religion disqualifies them. It does not. Nor is it thought that church membership disqualifies them. It does not. It is not that holding an ecclesiastical office or position disqualifies, for it does not. It is the introduction into the schools as teachers of persons who are by their striking and distinctive ecclesiastical robes necessarily and constantly asserting their membership in a particular church, and in a religious order within that church, and the subjection of their lives to the direction and control of its officers. . . . wearing their peculiar robes which tell of their church, their order and their subordination to the guidance of their ecclesiastical superiors; using their religious names and addressed by the designation, `sister,' they direct the studies and the deportment of the children under their *Page 206 care, as ecclesiastical persons."
Although not a fact included in the finding, the undisputed evidence shows that during the four years in question this school was attended by an average of three hundred and seventy pupils, every one of whom was a Catholic and an inmate of the orphanage. Under the circumstances, to construe the court's finding that the school "always has been open to any child living in the neighborhood, regardless of religious faith," as demonstrating the nonsectarian character of the school is to substitute theory for reality. Whether this is a public school essentially depends upon the nature of the educational facilities which it affords the public, that is, non-Catholics as well as Catholics. Under our law, education is compulsory. This being so, the specific question is: Can a non-Catholic resident of the area served by this school, subject as he is to taxation to maintain it, lawfully be compelled to face the dilemma of either sending his children to it or paying for their education elsewhere? To my mind, to pose the question is but to emphasize that the answer must be "No."
As the court well said in Knowlton v. Baumhover,182 Iowa 691, 704, 166 N.W. 202: "If there is any one thing which is well settled in the policies and purposes of the American people as a whole, it is the fixed and unalterable determination that there shall be an absolute and unequivocal separation of church and state, and that our public school system, supported by the taxation of the property of all alike — Catholic, Protestant, Jew, Gentile, believer, and infidel — shall not be used, directly or indirectly, for religious instruction." With this statement I am in full accord. Giving effect to the principle which it declares, it is my conclusion that the school here in question should not be held to be a public school. *Page 207