This section is from the "The Subvention In The State Finances Of Pennsylvania" book, by Frederic B. Garver.
Now the constitution does not prohibit appropriations to all private institutions of a charitable character, but only to those that are sectarian or denominational. As the first step in combatting the grants, it would be necessary to attack one or more appropriation acts making subventions to charitable institutions. And, since the courts would not take cognizance of irregularities in legislative procedure such as have been described, the only ground upon which the unconstitutionality of the appropriations could be urged would be the sectarian or denominational character of some of the hospitals and homes.
The whole question would turn upon the meaning of the words "sectarian" and "denominational" as found in Article III, Section 18, of the constitution. The only cases in which the courts of the state have been called upon to decide upon the meaning of the prohibitions against the appropriation of public funds for the support of sectarian institutions have involved the employment of members of religious orders as teachers in the public schools. In a leading case, it was decided by a court of original jurisdiction that the payment of public funds as compensation to such teachers was not in violation either of Section 2, Article X, or Section 18, Article III. When the case was brought before the supreme court on appeal the decision of the lower court was sustained. *56
In deciding this case, the judge of the lower court said, "The plain and obvious meaning of the 2d section of Article 10 and of the 18th section of Article 3, is that money raised by compulsory taxation for the support of the public schools or other public purposes shall not be used for the propagation or encouragement of the doctrines of any religion or church— as the term is commonly used—since that would be a diversion of the money from the purpose for which it was raised, and in direct violation or Article 1, Section 3, of the constitution. . . " *57 The court said further that the prohibitions of the constitution were against the appropriation of funds for the support of institutions and schools " under the control or management of some particular sect and organized for the purposes of such sect. . . . " *58 The lower court held that the employment of members of a Catholic sisterhood to teach in a public school did not make it a sectarian school within the meaning of the constitution. *59
56 Hysong v. School District, 164 Pa. 629.
57 Ibid. These are the words of the opinion as quoted by the Supreme Court.
58 Idem, p. 642.
59 Idem, p. 648-649.
In the same case, the plaintiffs in the original suit asked the court to issue a permanent injunction against the use of a public school building by the members of a Roman Catholic sisterhood for the purpose of imparting instruction in the doctrines of the Roman Catholic Church. This injunction the court granted saying that the use of the building for this sort of religious instruction was in violation of the sections of the constitution cited. *60
60 164 Pa. 652.
It is obvious that the portions of the opinion of the lower court that have been given are far from decisive with respect to appropriations to hospitals. In the first place, the statements of the court were not made in a case involving the grant of funds to a private institution. The schools are public while the hospitals and other institutions that receive subsides are private concerns. In the second place, two sections of the constitution were being interpreted and it is impossible to determine the meaning the court attached to the works contained in Article III, Section 18, which is the only one that might be invoked to prevent the General Assembly from granting money to privately managed charitable institutions. Finally, insofar as the case involved the use of the school building for religious instruction, it was not reviewed by the supreme court.
But even though the supreme court should at some future time decide that the legislature had no authority to assist with money any institution that is owned or controlled by a religious or sectarian organization or body, the effect upon the grants would not be important unless the legislature should consent to abandon the present system. It would be possible in most cases for the legislature to observe the letter of the law and yet continue the appropriations. Corporations, a minority of whose directors were laymen or perhaps non-members of the church or sect really controlling, could be organized to take over the hospitals and orphanages. These institutions would not be operated for the propagation of any particular doctrine or creed, nor would they be controlled by any sect or religious order. If the present system is ever discontinued or modified, it will be with the consent and co-operation of the people acting through the legislature and not in spite of them.