THE ROMAN CATHOLIC WELFARE CORPORATION OF SAN FRANCISCO (a Corporation), Petitioner, v. CITY OF PIEDMONT et al., Respondents, 45 Cal. 2d 325

CARTER, J. — This is a proceeding in mandamus by petitioner, the Roman Catholic Welfare Corporation of San Francisco, to compel the issuance of a building permit for the construction of a building to be used for an elementary school in which secular and religious subjects were to be taught. The building permit was denied on the sole ground that a zoning ordinance of the city of Piedmont prohibited the construction of any school within Zone A, where petitioner’s land is located, except public schools under the jurisdiction of the board of education of the city of Piedmont.

In Zone A, there are three elementary schools, one junior high school and one high school, all under the jurisdiction of the board of education of the city. The ordinance in question was passed by the city council and approved by a large majority of the voters at a general election.

There is only one question involved: Whether the city of Piedmont may, by ordinance, constitutionally prevent the construction of a building to be used for private schoól purposes in an area where public schools are located. “It is well settled that zoning ordinances, when reasonable in object and not arbitrary in operation, constitute a justifiable exercise of police power, . . .

Every intendment is in favor of the validity of the exercise of police power, and, even though a court might differ from the determination of the legislative body, if there is a reasonable basis for the belief that the establishment of a strictly residential district has substantial relation to the public health, safety, morals or general welfare, the zoning measure will be deemed to be within the purview of the police power.” (Wilkins v.

City of San Bernardino, 29 Cal.2d 332, 337 [171 P.2d 542].) We must then determine whether, in the instant ease, there is a reasonable basis for the ordinance prohibiting private schools in an area where public schools are permitted. Petitioner acquired its property subsequent to the time the ordinance was passed. It is conceded that the question is one of first impression in this state. The record shows that Zone A is composed of 98.7 per cent of the entire area of the city of Piedmont and is populated by approximately 98.2 per cent of the entire population of the city of Piedmont.

Zone B has .59 per cent of the area of the city and consists of three noncontiguous parcels of land none of which is unimproved; Zone C has .24 per cent of the area of the city and consists of 10 noncontiguous parcels of land none of which is unimproved; Zone D has .46 per cent of the total area of the city and consists of five noncontiguous parcels of land two of which are unimproved. Private schools are permitted in Zones B, C, and D. The land owned by petitioner and on which it is contemplated the private school in question will be constructed is immediately adjacent to Corpus Christi (Roman Catholic) Church.

Petitioner argues that the ordinance in question is unconstitutional and void because of its arbitrary and unreasonable discrimination against private schools.

Respondents, on the other hand, argue that the ordinance constitutes a reasonable exercise of the city’s police power in that the city is primarily residential in character, that in excluding private schools, the city council could consider such factors as the character of the district, the conservation of property values, public opinion, matters affecting traffic control, size of streets, parking, noise, fire protection, overburdening of water mains and sewers, and the peace, comfort and quiet of the district.

It is contended that private schools may be located in the three remaining zones; that the proposed school would be attended by children from both Oakland (the adjacent city) and Piedmont and perhaps children from other communities while the public schools in the zone would be attended by only Piedmont children and that the larger number of children would bring about more noise and traffic hazards with the necessity for more traffic control. Respondents rely on State v.

Sinar, 267 Wis. 91 [65 N.W.2d 43, 47], a mandamus action by a private, nonprofit corporation to compel the city building inspector to issue a permit for the construction of a private high school in a class “A” residential zone where public schools were permitted. It was there held, with two justices dissenting, that “. . . tangible differences material to the classifications of the ordinance can be readily pointed out which sustain the distinction made by the ordinance between the schools. To begin with, the term ‘public’ is the antithesis of ‘private.’ The public school is not a private one.

They serve different interests and are designed to do so. The private school is founded and maintained because it is different. Is that difference material to the purpose of zoning? In many respects the two schools perform like functions and in probably all respects concerning noise, traffic difficulties and the other objectionable features already mentioned they stand on an equality, so that in several of the objects of zoning ordinances, — the promotion of health, safety and morals, as laid down by

section 62.23(7) (a), Statutes, and developed by respondent’s brief, we may not say that the two schools differ. But when we come to ‘the promotion of the general welfare of the community, — ‘Aye, there’s the rub.’ The public school has the same features objectionable to the surrounding area as a private one; but it has, also, a virtue which the other lacks, namely, that it is located to serve and does serve that area without discrimination. Whether the private school is sectarian or commercial, though it now complains of discrimination, in its services it discriminates and the public school does not.

Anyone in the district of fit age and educational qualifications may attend the public high school. It is his right. He has no comparable right to attend a private school. To go there he must meet additional standards over which the public neither has nor should have control. The private school imposes on the community all the disadvantages of the public school but does not compensate the community in the same manner or to the same extent. If the private school does not make the same contribution to public welfare this difference may be taken into consideration by the legislative body in framing its ordinance.

If education offered by a school to the residents of an area without discrimination is considered by the council to compensate for the admitted drawbacks to its presence there, that school may be permitted a location which is denied to another school which does not. match the offer, and we cannot say that such a distinction is arbitrary or unreasonable or that such discrimination between the two schools lacks foundation in a. difference which bears a ‘fair, substantial, reasonable and just relation’ to the promotion of the general welfare of the community, which is the statutory purpose of zoning laws in general and of the ordinance in question.” The dissenting opinion pointed out that the primary purpose of all schools was to educate the students; that the state was interested in having educated children to the end that they eventually become good citizens; that private schools as well as public ones promote the general welfare and that there was no substantial difference in the purpose which they served.

The dissenting opinion quoted from the case of Catholic Bishop of Chicago v. Kingery, 371 111. 257 [20 N.E.2d 583, 584], where it was said: “We fail to perceive to what degree a catholic school of this type will be more detrimental or dangerous to the public health than a public school. It is not pointed out to us just how the pupils in attendance at the parochial school are any more likely to jeopardize the public safety than the public school pupils. Nor can we arbitrarily conclude that the prospective students of the new school will seriously undermine the general welfare.

As a matter of fact such a school, conducted in accordance with the educational requirements established by State educational authorities, is promotive of the general welfare. ’ ’ Petitioner argues that parents have the basic constitutional right to have their children educated in schools of their own choice, subject to reasonable regulations as to subjects required to be taught, manner of instruction, etc. In Pierce v.

Society of Sisters, 268 U.S. 510, 534 [45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468], it was held that the Act of 1922 which required every parent, guardian, etc. of a child between 8 and 16 years to send him “to a public school for the period of time a public school shall be held during the current year” “. . . unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.

As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.

The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Respondents seek to distinguish the Pierce case on the ground that it involved an established business conducted for a substantial profit which would be destroyed had the act in question been enforced; and on the ground that the Oregon statute sought to keep private schools out of the entire State of Oregon.

It is argued that here in the event the ordinance is enforced, Piedmont parents will continue to send their children to those private schools which are in existence outside the city limits of Piedmont. Respondents’ argument is based on the theory that in the Pierce case it was considered unreasonable to expect Oregon parents to send their children out of the state to attend private schools while it is not unreasonable to expect Piedmont parents to send their children to private schools outside the city limits. This begs the question.

Parents have the right to send their children to private schools, rather than public ones, which are located in their immediate locality or general neighborhood. It is also argued by the city that even the constitutional right of parents to educate their children as they choose (Pierce v. Society of Sisters, supra, 268 U.S. 510) must yield to a reasonable exercise of the police power. This argument adds nothing to the ones heretofore made. The question of the reasonableness of the ordinance is the primary one involved here. In Yokley, Zoning Law and Practice (2d ed.), volume 1,

section 57, at page 89, it is said: “In the light of a well known Illinois decision [Catholic Bishop of Chicago v. Kingery, 371 Ill. 257 (20 N.E.2d 583)] affecting discrimination between classes of schools permitted in certain zones, it is well to again state the general principle that a zoning ordinance restricting the property rights of an individual without having any direct or substantial relationship to the promotion of the public health, safety, morals or welfare, is invalid. In this ease a village zoning ordinance expressly permitting the maintenance of public schools but impliedly prohibiting private or parochial schools in a residential

section was declared to be invalid as having no substantial relationship to the promotion of the public health, safety, morals or welfare, the court holding that the restriction amounted to a capricious invasion of property rights. “There are many other cases which have been reported that uniformly follow this rule that discrimination between public and private schools will not be tolerated. ...” In Mooney v.

Village of Orchard Lake, 333 Mich. 389 [53 N.W.2d 308, 310], a suit was brought by the Roman Catholic Archbishop to enjoin defendants from enforcing a zoning ordinance which prohibited churches and schools in a certain residential area. The court held it would not indulge in a presumption that the “. . . exclusion of school and church from an entire municipality is conducive to public health, safety, morals or the general welfare, ...

A thesis so inconsistent with the spirit and genius of our free institutions and system of government and the traditions of the American people will not be accepted by way of presumption, nor at all in the absence of competent evidence establishing a real and substantial relationship between the attempted exclusion and public health, safety, morals or the general welfare and, hence, the reasonableness and validity of the restriction upon use of private property as a legitimate exercise of the state’s police powers.” In the Mooney case, the facts show that there, as here, the zoning ordinance had the practical effect of excluding private schools from the entire community.

In State v. Northwestern Preparatory School, 228 Minn. 363 [37 N.W.2d 370, 371], it was held that a city zoning ordinance permitting public schools in a residential area while prohibiting private schools violated the equal protection clauses of the federal Constitution and the Minnesota Constitution. It was noted that a private school has ‘‘no effect upon a residential area different from that of a public or parochial one.” In Lumpkin v.

Township Committee of Bernards Tp., 134 N.J.L. 428 [48 A.2d 798], it was held that a township zoning ordinance permitting premises in a residential A zone to be used as a school by a church, but prohibiting use of such premises for a private boarding school for boys, was invalid because it bore no substantial relation to the public health, morals, safety, or general welfare. It was also held that such an ordinance denied the fundamental rights guaranteed by the Fourteenth Amendment to the federal Constitution. In Concordia Collegiate Institute v.

Miller, 301 N.Y. 189 [93 N.E.2d 632], it was held that an amendment to a zoning ordinance which permitted a school in a residential district after the petitioner had filed the consents of 80 per cent of the owners of property in the district was invalid as violative of the due process clauses of the federal and state Constitutions. Quoting from Nectow v.

City of Cambridge, 277 U.S. 183 [48 S.Ct. 447, 72 L.Ed. 842], it was held that ‘‘The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare.” In State v.

Joseph, 139 Ohio St. 229 [39 N.E.2d 515], it was held that a zoning ordinance excluding churches from a residential district was not justified for the protection of public health and safety by preventing increased noise, confusion, traffic congestion and parking difficulties, or because of the adverse effect on values of adjacent lands, or for the protection of the public morals and welfare.

It was held not a proper governmental function to exclude churches from a residential district of a municipality in the name of the public for the purpose of securing benefits of exclusive residential restrictions to adjacent landowners. In State ex rel. Roman Catholic Bishop of Reno v. Hill, 59 Nev. 231 [90 P.2d 217], it was held that a zoning ordinance requiring the written permission of 75 per cent of the property owners before a church could be erected in a residential district was void as violative of the due process clauses of the state and federal Constitutions.

Respondents contend that the cases from other jurisdictions are distinguishable- from the one under consideration, and that in many of the sister states the Supreme Courts are as “anti-zoning as the record of this Court is pro-zoning.” While on the facts, many of the cases may be distinguishable, the reasoning which leads to the conclusion that an ordinance is invalid which excludes private schools from an area in which public schools are found is persuasive. It is difficult to make an argument that private schools are inimical to the public welfare while public schools are not.

Respondents argue that Piedmont can neither “allow nor refuse to allow” public schools in Zone A in that only the board of education, an agency of the state, has that power. It is conceded that the wording of the ordinance purports to permit public schools in the area but that the reality of the situation is that Piedmont would have no power to exclude such schools. The question is not here involved whether the city could enact reasonable legislation concerning public schools. In Butterworth v.

Boyd, 12 Cal.2d 140, 152 [82 P.2d 434, 126 A.L.R. 838], it was held that “The school system has been held to be a matter of general concern, rather than a municipal affair, and consequently is not committed to the exclusive control of local governments. But the cities may make local regulations beneficial to and in furtherance of the school system, provided that these provisions do not conflict with the general law. (Whitmore v. Brown, 207 Cal. 473 [279 P. 447] ; Esberg v. Badaracco, 202 Cal. 110 [259 P. 730] ; Anderson v.

Board of Education, 126 Cal.App. 514 [15 P.2d 744, 16 P.2d 272].) ” A comprehensive zoning ordinance of the city of Los Angeles was held proper where it involved to some extent a part of the public school system (Ransom v. Los Angeles City High Sch. Dist., 129 Cal.App. 2d 500 [277 P.2d 455]). Whether a city could zone to exclude public schools is not before us now, nor has it been before a court of this state so far as can be ascertained.

The only question before us is whether a city may, constitutionally, by legislation exclude all private schools from 98.7 per cent of its total area — which, when the character of the remaining area is taken into consideration, constitutes an effective exclusion of private schools from the entire city. Respondents argue that a private school will be free from any control as distinguished from the control exercised over public schools. This argument is without merit.

The Education Code provides in part (§ 16624) that “Such school [private] shall be taught in the English language and shall offer instruction in the several branches of study required to be taught in the public schools of the State.

The attendance of the pupils shall be kept by private school authorities in a register, and the record of attendance shall indicate clearly every absence of the pupil from school for a half day or more during each day that school is maintained during the year” Insofar as other regulations in the interest of the public welfare are concerned, no doubt the city, acting under its police power, could insure the preservation of the public peace and the preservation of private property.

It is also argued by respondents that the owner of a private school may, if the ordinance is struck down, locate the school as dictated by its own welfare and interests without any control on the part of the city. This question is not before us. Each case must be decided on its facts, and before us we have only the question of a private school to be located adjacent to a Catholic church in the area where public schools are found.

Respondents’ argument that a private school located in the precise location involved here would be inimical to the public welfare is not convincing Respondents point to no exceptional circumstances concerning the particular location of this particular school. The state’s basic zoning statute provides that a city “may by ordinance regulate, restrict and segregate the location of . . . the several classes of public and semi-public buildings, and the location of buildings or property designed for specified uses. ...” (Deering’s Gen. Laws, 1943, Act 994, § 2)

Article XI, sectian 11, California Constitution, also provides that “Any county, city, town or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.” Respondents place reliance upon the ease of Corporation of Presiding Bishop v. City of Porterville, 90 Cal.App.2d 656 [203 P.2d 823], in which it was held that by ordinance the city could prohibit all churches in a residential area. That case is distinguishable from the one under consideration.

Here, only private schools are excluded — not all schools as were all churches in the Porterville case. It is well settled that “no law within the broad areas of state interest may be unreasonably discriminatory or arbitrary. The state’s interest in public education, for example, does not empower the Legislature to compel school children to receive instruction from public teachers only, for it would thereby take away the right of parents to direct the upbringing and education of children under their control.” (Pierce v.

Society of Sisters, supra, 268 U.S. 510, 534, 535.) Careful examination of the arguments in support of the legislation in question reveals that there is absent the compelling justification which would be needed to sustain discrimination of the nature here involved. For the reasons above stated it would appear that the ordinance here involved is unconstitutional and void because of its arbitrary and unreasonable discrimination against private schools. Let the peremptory writ of mandate issue as prayed. Gibson, C. J., Shenk, J., and Traynor, J., concurred.