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Arch R. Everson v. Board of Education of Township of Ewing

Decided: October 15, 1945.


On appeal from the Supreme Court on certiorari, whose opinion is reported in 132 N.J.L. 98.

For the respondents-appellants, William Abbotts (William H. Speer, of counsel).

George G. Tennant and Joseph Lanigan, amici curiae.

For the prosecutor-respondent, Powell & Parker (Albert McCay, of counsel).

For American Civil Liberties Union, amicus curiae, Joseph Beck Tyler.


The opinion of the court was delivered by

CAMPBELL, CHANCELLOR. This is an appeal from a judgment of the Supreme Court, on certiorari, setting aside a resolution of the appellant Board of Education enacted under the authority of R.S. 18:14-8 as amended by Pamph. L. 1941, ch. 191 providing for the transportation of pupils for the school year, July 1st, 1942, to June 30th, 1943.

Pursuant to such resolution the appellant on February 15th, 1943, authorized the payment of $8,034.95 for transportation. Of this sum $357.74 was paid to the parents of twenty-one pupils

who were transported to parochial schools in Trenton, five to elementary schools and sixteen to high schools. The appellant provides no education facilities in its district beyond the eighth grade. The transportation was by public carrier bus. The payments to parents were in satisfaction of advancements made by them; and the amount was fixed upon the basis of the actual number of days' attendance as indicated upon each pupil's report card.

The record before us shows that the reasons advanced in the Supreme Court and here in support of the judgment under review are that the statute, upon which the resolution is based, is infirm and inoperative because it contravenes several constitutional inhibitions, namely: article I, paragraphs 3, 4, 19 and 20; article IV, section 7, paragraph 6, of the constitution of this state; and, the Fourteenth Amendment to the Constitution of the United States.

None of these several provisions of the constitution, except that of article IV, section 7, paragraph 6, requires any discussion. For neither their language, meaning, intent, nor effect are violated by the statute, supra, or the resolution challenged in this proceeding.

We turn at once to the reason that the statutory enactment is constitutionally defective because it is said that it is in conflict with article IV, section 7, paragraph 6.

It appears from the majority opinion of the Supreme Court that it based its conclusion and judgment "on the fundamental ground that the amendment of 1941 is in violation of paragraph 6 of section 7 of article IV of the constitution" citing as authority Rutgers College v. Morgan, 70 N.J.L. 460; affirmed, 71 Id. 663, and In re Voorhees, 123 N.J. Eq. 142; affirmed, sub nominee Union County Trust Co. v. Martin (Supreme Court), 121 N.J.L. 594; affirmed here, 124 Id. 35. We find in the minority opinion the statement "There is no proof whatever that any part of the State School Fund was so used here." A meticulous examination of the record shows an absolute lack of any such proof.

The duty of this court in such a situation is well established. It is settled that findings of fact by the Supreme

Court on conflicting evidence or on uncontroverted evidence reasonably susceptible of different inferences are conclusive on appeal, Jersey City v. State Water Policy Commission, 118 N.J.L. 72, 77; Siravo v. Sirian Lamp Co., 124 Id. 433. It is also settled that we do not hesitate to reverse where there is no competent evidence to support a fact conclusion arrived at below, Ciocca v. National Sugar Refining Co., 124 Id. 329, 335; Cirillo v. United Engineers, &c., 121 Id. 511, 512; Grant v. Metropolitan Ice Co., 108 Id. 536, 537, and further that this court will reverse any material fact conclusion if it rests on erroneous premises. Bollinger v. Wagaraw Building Supply Co., 122 Id. 512, 517; Ciocca v. National Sugar Refining Co., supra (at p. 335); Rotino v. J.P. Scanlon, Inc., 126 Id. 419, 421.

As said, the record before us is barren of any evidence as to the source of the funds from which the challenged payment of $357.74 was made.

In this state of proof we must assume that the payment was made lawfully, from funds under appellant's control. We may not assume, in the absence of proof, that the moneys were taken from the appellant Board's distributive share of the income of the State School Fund, R.S. 18:10-1 to 17.

The history of the State School Fund -- "The fund for the support of free schools" -- may be traced from its origin in Pamph. L. 1817, pam. 26 as amended by Pamph. L. 1818, pam. 100 and succeeding statutory amendments and supplements. Pennington's Revision (1821), 612, 649, 660; Nixon's Digest (4th ed., 1868), 877, § 65-75; Revision (1877), 1081, § 65-76, and p. 1087, §§ 101, 102; 3 Gen. Stat. 3030, § 65-76; 4 Comp. Stat., 4778, § 166-176; R.S. 18:10-1 to 17. Therein is perceived the basis and reason for the constitutional provision relied on by the Supreme Court which was originally inserted in the basic law in 1844.

This constitutional provision of 1844 stripped the legislature of the power it had reserved to itself in Pamph. L. 1818, pam. 100, to change, alter or dissolve this trust fund. The capital of the fund and the income therefrom were protected against trespass by the legislature. State v. Rutherford,

98 N.J.L. 465, 467. The constitutional provision together with other statutes identifies the fund therein referred to.

The amendment of this paragraph of the constitution in 1875 had an entirely different purpose than the provision just discussed. The amendment of 1875 was a mandate to the legislature to broaden the field of free public school education and pursuant to this mandate legislation was enacted to pay the cost of such education by providing for the raising of a state school tax, delegating taxing powers to local school districts to raise funds for local school purposes and dedicating certain railroad taxes and other state funds for the same purpose. These were all statutory provisions and were subject to alteration, modification, and repeal by subsequent legislation untrammeled by the constitutional inhibition applicable to the fund for the support of free schools. The legislature already had the necessary power and the amendment of 1875 neither increased nor limited it in any particular.

Nothing appears on the face of the resolution or the challenged statute that could be construed to authorize the use by the appellant of any of its apportioned share of the income of the fund for the support of free schools, R.S. 18:10-1 to 17, to pay the cost of transportation of pupils to parochial schools.

We are asked to imply that the statute and resolution authorize the use of constitutionally proscribed funds for such purpose.

This we may not do. The rule is that courts will presume in favor of the constitutionality of a statute and will incline to a construction favoring its validity unless its invalidity plainly appears. State v. Tachin, 92 N.J.L. 269, 274; affirmed, 93 Id. 485; State Board of Milk Control v. Newark, 118 N.J. Eq. 504, 519; State v. Murzda, 116 N.J.L. 219 (at p. 223).

We are likewise urged to construe R.S. 18:10-41 as indicating an unconstitutional use of money by the appellant. This section requires the county superintendent of schools to apportion the State School moneys allotted to the county to the respective school districts for certain purposes designated therein.

Let it be noted here that all funds included in the phrase "state school moneys" are not within the constitutional inhibition relied on by the respondent. The section, however, requires the county superintendent to apportion out of state school moneys "seventy-five per cent. of the cost of transportation of pupils to public school or schools * * *."

The language is clear and unambiguous.

In the case before us the total transportation cost was $8,034.95 for a half year which included $357.74 as the cost of transporting parochial school pupils and in the absence of proof to the contrary we must assume that the county superintendent obeyed the statute and based the ...

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