For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For affirmance -- None. The opinion of the Court was delivered by Weintraub, C.J.
[58 NJ Page 467] Plaintiffs sought a declaration that a statute providing for free transportation of children to private schools was unconstitutional. The principal attack was two-fold: (1) that the statute violated the establishment clause of the church-state provision of the First Amendment to the Constitution of the United States, and (2) that the statute discriminated arbitrarily among pupils attending private schools, in violation of the equal protection clause of
the Fourteenth Amendment. The trial court found against plaintiffs as to the establishment issue, but for them with respect to their equal protection complaint. The trial court also placed its decision on two additional grounds which we find untenable and which require but passing mention.*fn1 West Morris Regional Board of Education, Morris County v. Sills, 110 N.J. Super. 234 (Ch. Div. 1970).
Defendants appeal and plaintiffs cross-appeal. The cross-appeal seeks no modification of the judgment itself; rather the object is to place the result upon the more pervasive thesis that the church-state provision bars free public transportation to parochial schools. We certified the matter before argument in the Appellate Division.
The statute under attack is N.J.S.A. 18A:39-1.*fn2 It deals with pupils residing "remote" from any schoolhouse,
and authorizes the local board of education to make rules and contracts for their transportation, not only to public schools, but also to private schools, subject, however, to certain exceptions. The equal-protection argument arises out of those exceptions. The church-state issue arises out of the fact that the required transportation includes transportation to parochial schools.
The statute has a relevant history. In an earlier form, it was upheld against the charge that it violated the establishment clause. Everson v. Board of Education of Ewing Township, 133 N.J.L. 350 (E. & A. 1945), affirmed, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 (1947). The statute then required that when a school district provides transportation for public school children living remote from any schoolhouse, it must also supply transportation "from any point in such established school route to any other point in such established school route" to school children residing in such school district "in going to and from school other than a public school, except such school as is operated for profit
in whole or in part." R.S. 18:14-8, as amended by L. 1941, c. 191. The local board of education there provided for transportation by reimbursing the parent of public school pupils for fares paid a common carrier. Obedient to the statute, the board also provided for reimbursement to parents of students who used the same bus routes in attending private schools, all of which were operated by the Roman Catholic Church. The statute was upheld in Everson by a divided vote in our State court and by a vote of 5 to 4 in the United States Supreme Court.
After Everson, the subject was dealt with expressly in our State Constitution of 1947, to the end that the establishment clause of that Constitution, Art. I, para. 4, could not be construed to bar transportation for private school pupils. 1 Constitutional Convention of 1947, Convention Proceedings, pp. 704-726. The Constitution of 1947 accordingly provides, Art. VIII, § 4, para. 3:
The Legislature may, within reasonable limitations as to distance to be prescribed, provide for the transportation of children within the ages of five to eighteen years inclusive to and from any school.
We digress for a moment to deal with the question whether Art. VIII, § 4, para. 3, quoted immediately above, interdicts the statutory scheme here involved. As we mentioned in footnote 1, supra, the trial court found that the statute violated this provision. 110 N.J. Super. at 251 and 254. The thesis of that finding is that the phrase, "within reasonable limitations as to distance to be prescribed," sets forth the exclusive basis upon which the Legislature may differentiate or classify students. But the purpose of this constitutional provision being to make it clear that the Legislature may (but need not) transport students to private schools, the quoted phrase seems clearly to be a restriction upon the amount of transportation which may be furnished rather than a prescription of a single basis upon which the beneficiaries of a transportation program may be determined. Hence this section of the Constitution does not bear upon the issue in this case.
Returning to the history of the statute, we note that in Fox v. Board of Education of West Milford Township, 93 N.J. Super. 544 (Law Div. 1967), it was held that the statute did not authorize transportation to nonpublic school children other than along established public school routes. Thereupon, the Legislature adopted L. 1967, c. 74, which eliminated the "established school route" provision and directed that free transportation be given children attending a nonpublic school "not more than 20 miles from the residence of the pupil."*fn3 The statute was further amended by L. 1968, c. 29, to place a limit of $150 upon the sum to be paid for the transportation of a student attending a nonpublic school.
The statute as it presently stands was sustained in McCanna v. Sills, 103 N.J. Super. 480 (Ch. Div. 1968), against a charge that it violated the establishment clause of the First Amendment, and was sustained in Board of Education of the Borough of Woodbury Heights v. Gateway Regional High School, 104 N.J. Super. 76 (Law Div. 1968), against a charge that the statute discriminated against pupils in public schools in the circumstances of that case. Neither decision was appealed.
As we have said, the trial court rejected plaintiffs' claim that the statute violates the First Amendment ban of any "law respecting an establishment of religion." We agree with the trial court's treatment of that issue. The statute, in all respects relevant to that issue, is as it was when it was upheld in Everson.*fn4 It remains a measure to aid the student ...