I dissent, and vote to dismiss the writ of certiorari.
The statute provides for the transportation of children attending schools other than public schools, not operated for profit, on routes established for the conveyance of public school children. Pamph. L. 1941, p. 581; N.J.S.A. 18:14-8.
It is assailed, first, as in contravention of paragraphs 19 and 20 of Article I of the State Constitution. Paragraph 19 provides that "No county, city, borough, town, township or village shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, association or corporation;" and paragraph 20 directs that "No donation of land or appropriation of money shall be made by the state or any municipal corporation to or for the use of any society, association or corporation whatever."
Paragraph 19 is not in terms applicable to school districts. And I cannot accept the view that the mere transportation of pupils to private schools, over a route already established for the conveyance of public school children, constitutes a *Page 102 gift, donation, or appropriation of money by the state or a municipal corporation "for the use" of a "society, association or corporation."
Of course, a gift of public funds or property to a private society, association, or corporation would be unconstitutional, whether made directly or indirectly. Wilentz v. Hendrickson,133 N.J. Eq. 447; affirmed, 135 Id. 244. But this is not the case here. Such transportation is a service to the children and their parents rather than to the schools, for otherwise the parents would be obliged to provide the conveyance or incur the traffic hazards incident to the journey, for which children are generally so ill-equipped. It is in no real sense a contribution to "the use" or the maintenance of the institutions which the children attend. Here, the school district did not operate the transport. The challenged resolution provides for conveyance "by way of public carriers;" and the parents were reimbursed directly for the fares thus expended. And such provision is in the exercise of what I deem to be an unquestionable public function.
School attendance is compulsory. R.S. 18:14-14, et seq. Compulsory education is a prerogative of the state. The state may compel parents to perform the natural duty of education owed to their children, and aid them in so doing, except as restrained by constitutional limitations. But compulsory attendance at a public school, whether the compulsion be direct or indirect, would violate constitutional guaranties. Pierce v. Society ofSisters of the Holy Names of Jesus and Mary, 268 U.S. 510;45 S.Ct. 571; 69 L.Ed. 1070. The statute under review facilitates the attendance at both classes of schools of children remotely situated, and thus contributes substantially to the effectuation of the statutory provisions for compulsory education, and at the same time considers the factor of safety — a reasonable measure to those ends. I am unable to perceive any intrusion upon these or any other constitutional limitations by the mere provision, under such conditions, of transportation to children attending non-public schools not operated for profit. The state recognizes the private school, as perforce it must, as a means of providing the minimum of education decreed by what is conceived to *Page 103 be sound public policy; and I think the legislature possesses the incidental right of providing transportation to such schools of children residing at a distance, especially where it is confined to routes found necessary for the conveyance of public school children. I cannot find in any of our constitutional prohibitions a purpose to deny such transportation to children of non-profit private schools, seeking the education which satisfies the standard of the compulsory education law. If this transportation provision be viewed apart from the institutions themselves, and considered as an aid to parents in making educational facilities of their choice available to their children with a measure of safety, in the service of an essential public interest, it seems to me that constitutional doubts lose their force. As so viewed, the act is in aid of compulsory education, a primary concern of society. Education is a matter of "supreme importance, which should be diligently promoted." Meyer v. Nebraska,262 U.S. 390; 43 S.Ct. 625; 67 L.Ed. 1042.
A like statute has recently received the approval of the Court of Appeals of Maryland. Board of Education of Baltimore County v. Wheat, 174 Md. 314; 199 Atl. Rep. 628. It was there held that "the accommodation of private school children is an incidental use of provision made for an unquestioned public purpose," and therefore the statute did not infringe the prohibition of the Declaration of Rights "against the use of funds for private purposes." Chief Judge Bond declared that whether such use is "private * * * appears to be, finally, a question whether it is in furtherance of a public function in seeing that all children attend some school, and in doing so have protection from traffic hazards." He continued: "Starting with the interest which the state is acknowledged to have in seeing that all children of school age acquire an education by attending some school, and the fact that they are complying with the law in going to such a school as the parochial school involved in this case, their accommodation in the buses appears to the court to be within the proper limits of enforcement of the duty imposed. Compliance having been made dangerous in a much greater degree, removal of the danger to any extent would seem to be within *Page 104 the same public function. * * * This conclusion that the act must be regarded as one within the function of enforcing attendance at school, renders it unnecessary to consider separately the objection that a religious institution is aided. Article 36, Declaration of Rights. The institution must be considered as aided only incidentally, the aid only a byproduct of proper legislative action."
There is a conflict in the cases elsewhere that is in some instances more seeming than real. For example, in the case ofJudd v. Board of Education, 278 N.Y. 200; 15 N.E. Rep. (2d) 576, cited in the majority opinion, the constitution contained a sweeping provision against the use, "directly or indirectly," by the state or any subdivision thereof, of public money "in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught." The majority classified the statute as bestowing an indirect benefit upon the institutions as such, on the theory that "Free transportation of pupils induces attendance at the school," and "The purpose of transportation is to promote the interests of the private school or religious or sectarian institution that controls and directs it." Chief Judge Crane, for the minority, considered the measure to be a proper complement to the compulsory education statute. He said: "The object of such legislation is apparently to insure the attendance of the children at their respective schools for the requisite period of instruction and, perhaps, to safeguard the health of the children. The statute is not designed to aid or maintain the institutions themselves. Recognizing the right of the children to be sent to such schools, and enjoining upon them the duty of regular attendance, the Legislature gave the authorities power, in a proper case, to assist the children in getting to their school. * * * There is no benefit to the schools except, perhaps, as one may conceive an accidental benefit in the sense that some parents might place their children in religious schools when they anticipate transportation provision, though they might hesitate to do so if the children were compelled to make their own way. The constitutional *Page 105 provision is not designed to discourage or thwart the school where religious instruction is imparted. `Denominational religion is merely put in its proper place outside of public aid or support.'"
The doctrine that provision of transportation aids the private non-profit school by inducing attendance of pupils was rejected, as unfounded in fact, by Mr. Justice Robinson and Mr. Justice Mallery in interesting and well reasoned dissents in the case ofMitchell v. Consolidated School District No. 201,17 Wn.2d 61; 135 Pac.Rep.2d 79. It would seem that the statutory provision for the transportation of public school pupils was primarily designed to make such educational facilities available to pupils remotely situated from the seat of instruction, and thus to aid in the performance of the public educational function.
These considerations also dispose of the contention that the statute runs counter to paragraphs 3 and 4 of Article I of the State Constitution.
And I cannot agree that the act violates Article IV, section 7, paragraph 6, of the Constitution, safeguarding the "fund for the support of free schools."
The attack is upon the statute itself, not the use of public moneys as in contravention of this constitutional provision. The sole point made is that the act infringes the several cited constitutional limitations; and it is said, arguendo, that "part of the moneys used by school districts for transportation of pupils to private or sectarian schools can be traced to the school districts directly from the State school fund mentioned in the Constitution." There is no proof whatever that any part of the state school fund was so used here. The holding of the case of Rutgers College v. Morgan, 70 N.J.L. 460; affirmed,71 Id. 663, is that this constitutional mandate has relation only to what may be done with the constituted school fund, not what may be done with the general funds of the State. The sole question raised here is the constitutional sufficiency of the statute. *Page 106