Plaintiffs Henry F. Fox and Justin J. Jecker are citizens and taxpayers of West Milford Township, Passaic County. They bring this action in lieu of prerogative writs by which they challenge the validity of two bus contracts awarded by the West Milford Board of Education for the transportation of children to two private, nonprofit parochial schools in the municipality. Plaintiffs have joined the Attorney General of New Jersey as a defendant because of their attack on the constitutionality of a statute of this State (R.R. 4:37-2), and J. Harold Straub, Superintendent of Schools of Passaic County, because of his supervisory powers over the local board of education (N.J.S.A. 18:4-7).
Plaintiffs not only attack the contracts for bus transportation and the resolutions underlying them, but they also challenge the constitutionality of the enabling legislation, N.J.S.A. 18:14-8.
Plaintiffs' position in this litigation involves basically three contentions:
1. The enabling statute, N.J.S.A. 18:14-8, and the municipal action awarding the transportation contracts violate the provisions of the First Amendment to the United States Constitution which prohibits the adoption of any "law respecting an establishment of religion," as it is made directly applicable to the states by virtue of the due process clause of the Fourteenth Amendment.
2. The statute and municipal action violate Art. VIII, § III, pars. 2 and 3; Art. VIII, § IV, pars. 1 and 2, as well as Art. I, pars. 3 and 4 of the 1947 New Jersey Constitution.
3. The action of the local board of education is not authorized under N.J.S.A. 18:14-8 because the transportation contracts and routes were established specially for the children attending two nonpublic schools and were not incidental to the transportation to public schools and the routes established for such public schools.
All defendants join in a mutual assertion that the contracts, resolutions and statute are not violative of the Federal or New Jersey Constitutions; and that the creation of the two special bus routes for the parochial school children at public expense is within the authority granted to the school board by the Legislature (N.J.S.A. 18:14-8).
The case has been submitted to the court for determination by cross-motions for summary judgment based upon a written stipulation of facts and annexed exhibits which have been filed in the cause.
In the Spring of 1962 the West Milford Township Board of Education established routes for the transportation of school children to public schools within the district. At that time a request had been made by representatives of St. Joseph's Roman Catholic Church and Our Lady Queen of Peace Church urging the board of education to furnish transportation without charge for pupils attending their parochial schools. The request was for the purpose of providing transportation "beyond and outside the routes established for public school children." At that time the board denied the request.
Both schools are affiliated with the Roman Catholic Church and are organized as nonpublic, though nonprofit, organizations for teaching children of the Catholic faith. Their curriculum is substantially the same as that offered in public schools in New Jersey, with additional courses in religion and sectarian prayer.
Upon denial of their request by the board, the two churches filed a petition with the State Commissioner of Education appealing the denial and seeking to compel the township board of education to furnish such transportation. On April 22, 1964 the Commissioner decided that there was no duty on the part of the board of education to furnish transportation for nonpublic school pupils except along routes established for the transportation of public school children under its jurisdiction.
West Milford is a large township, essentially rural, hilly, with many wooded areas. It has experienced extensive population growth in recent years, which has resulted in several more-or-less discrete clusters of homes, although there is no heavy concentration of inhabitants at any point. Public transportation is available to New York City and to other distant points, but there is no public transportation which serves local needs.
The school system comprises four elementary schools and a new high school which opened in September 1962. Before that date, pupils of secondary grades were sent to Butler High School in Morris County. The withdrawal of these pupils to attend high school within their own township occasioned a redesigning of school transportation routes and precipitated, ultimately, the controversy in question.
St. Joseph's School, operated by St. Joseph's Roman Catholic Church, was opened in 1956. Its location in the southeastern section of the township is such that many of the buses which formerly transported pupils to Butler High School went past, or near its site, and a large number of pupils found its routes advantageous to them. They were transported on the public school buses. When the township's first school was opened to the north of St. Joseph's School, the direction of flow of public school transportation was reversed, thereby eliminating many of the routes which previously were useful to the parochial pupils attending.
Our Lady Queen of Peace School, operated by Our Lady Queen of Peace Roman Catholic Church, commenced operation in another section of the Township in 1960. This school was also affected by the rerouting of buses for the 1962-1963 school year. Certain routes which formerly passed its doors now proceeded by other roads some distance away, necessitating the shuttling of parochial school pupils to their school by buses provided by the Church. In addition, the continued growth of the parochial school, whose plans call for the addition of a grade each year until a complete elementary
school program is offered, has increased annually the number of pupils requiring transportation.
Following the decision of the Commissioner dismissing the appeal, there were continued demands by the two Catholic schools as well as other citizens and residents of the township urging the board to furnish transportation for the children attending these schools, not only within the routes established for public school children, but also to and from the parochial schools, including transportation outside the limits of the routes established for public school children.
Apparently, as a result of this public pressure, on September 24, 1964, the Board of Education of West Milford adopted a resolution establishing Routes Q-1, Q-2, Q-3 and Q-4 to service Our Lady Queen of Peace School pupils and routes SJ-1, SJ-2 and SJ-3 to service St. Joseph's School pupils, and implemented the same on September 30, 1964 by awarding a contract to Philips Transportation Co. for the school year of 1964-1965 at $600 per route. A prior effort to secure approval of these routes by the County Superintendent of Schools proved abortive when the Superintendent advised that the resolution creating these routes for transportation to nonpublic schools did not come within the purview of his office for review.
Thereafter, on July 29, 1965 the board of education by resolution established routes for various schools for the school year 1965-1966, including routes designated as SJ-1, SJ-2, SJ-3 and SJ-4, to service St. Joseph's School pupils, and routes Q-1, Q-2, Q-3, Q-4, Q-5 and Q-6, to service Our Lady Queen of Peace School pupils. All of the foregoing routes were established for the sole and primary purpose of transporting school children to and from these parochial schools, and were not for the primary benefit of public school children.
On August 19, 1965 the board adopted a resolution awarding a contract to Philips Transportation Co., Inc. to transport all parochial school pupils for the sum of $69.20 per
diem for the school year 1965-1966, and following said action a contract was executed pursuant to said resolution.
The entire cost of that portion of the transportation solely for students attending the nonpublic, nonprofit schools is borne by defendant board of education, which receives no state aid in connection therewith, and has requested none.
In 1964-65 the cost of transportation of school children along established public routes was $146,446.20, and the cost of transportation of school children along the nonpublic routes was $4,200. In 1965-66 the cost of transportation of the children along public routes was $162,609.49, and the cost for the transportation of school children on the nonpublic routes was $12,884.84.
The two Catholic schools involved are the only nonpublic, nonprofit schools in the municipality and are the only schools affected by the bus transportation contracts.
The prime attack on the contract and the state legislation underlying the same is that they are violative of that portion of the First Amendment of the United States Constitution, which provides: "Congress shall make no law respecting an establishment of religion * * *." It is contended that since the Fourteenth Amendment dictates the applicability of the First Amendment to the states (Cantwell v. State of Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1940)), the expenditure of public funds for the benefit of ...