
    James Sargent, Appellant, v. The Board of Education of the City of Rochester and Others, Respondents.
    
      Sisters in an orphan asylum may be employed by a city board of education to gire secular instruction to the children.
    
    An institution incorporated under .chapter 819 of the Laws of 1848, entitled “An act for the incorporation of benevolent, charitable, scientific and missionary societies,” and the acts amendatory thereof, whose certificate of incorporation states its particular object to be “the maintenance and tuition of orphan children of the male sex, and in particular the male orphan children of soldiers who have lost their lives in the service of the United States,” and which furnishes to orphan boys committed to its care a home, clothing,, food, lodging, moral training and religious and secular education, is not a school or institution of learning within the meaning of section 4 of article 9 of the Constitution of the State of New York, which prohibits the payment of public moneys to any denominational school or institution of learning, but is-an asylum within the meaning of section 14 of article 8 of such "Constitution which permits the payment of public moneys for the secular education of the children kept and maintained therein.
    Under section 82 of the Consolidated School Law (Laws of 1894, chap. 586, tit. 15) the board of education of the city in which such an asylum is located has power to provide for the secular education of the inmates of the asylum in the asylum itself and to employ the sisters, having charge of the children as their secular teachers. The fact that such sisters wear the garb of the Catholic sisterhood is immaterial.
    . Appeal by the plaintiff, James Sargent, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the .clerk.of the . county of Monroe on the 4th day of February, 1902, upon the decision of the court, rendered after a trial at the Monroe Special Term, dismissing the plaintiff’s complaint upon the merits.
    
      David N. Salisbury, for the appellant.
    
      James M. E. O’Grady and William A. Sutherland, for the respondents.
   Williams, J.:

The judgment should be affirmed, with costs.

The action was brought by a citizen and taxpayer of the city of Rochester to restrain the board of education and the comptroller and treasurer of the city from auditing or paying four sisters, employed by the board of education as teachers in St. Mary’s Boys’ Orphan Asylum,” for their services as such teachers. Substantially the basis of the plaintiff’s right of action is the contention that the institution in question is a school and not an asylum. If it is a school or institution of learning, then no money can be paid to it directly or indirectly, under section 4, article 9 of the State Constitution, because it is wholly or in part under the control of a religious denomination and denominational doctrines are taught in it. If, however, it is an asylum, then section 14, article 8 of the Constitution permits the payment of moneys for the secular education of the children kept and maintained therein, It was incorporated in December, 1864, under the act of April 12, 1848 (Chap. 319), entitled An act for the incorporation of benevolent, charitable, scientific and missionary societies,” and the acts amendatory thereof,' and the particular business and object of the institution, as expressed in its certificate, was “ the maintenance and tuition of orphan children of the male sex, and in particular the male orphan children of soldiers who have lost their lives in the service of the United States.” Pursuant to its object as thus expressed, it has furnished to orphan boys committed to its care a home, clothing, food, lodging, moral training and religious and secular education.

The institution is clearly an asylum and not a school or institution of learning, within the meaning of the constitutional provisions hereinbefore referred to. Its main object is to furnish a home, food, clothing, lodging and moral training to the boys committed to its charge. As incidental to the main object, it necessarily furnished the boys with secular . and religious education. They could, not be permitted to grow up in this State in ignorance and without religious instruction. The fact that secular education has been furnished in the institution does not change its real character as an asylum, and make it a school or institution of learning. (People ex rel. New York Inst, for Blind v. Fitch, 154 N. Y. 14. See, also, People ex rel. Board Charities v. New York Soc. P. C. C., 161 id.. 233, 244; S. C., 162 id. 429.)

Especially is this true, as such secular education has been paid for by the city of Rochester during all the time the institution has existed under the - authority of the Legislature of the State. In 1850 an act (chap. 261) was passed, entitled “An act to provide for the.better education of- the children in the several orphan asylums in this State, other than in the city of New York.” By section l of this act it was provided: “ The schools of the several incorporated orphan asylum societies within this State other than those in;the city of-New York, shall participate in the distribution of the school monies in the same manner and to the same extent, in proportion to the" number of children educated therein, as the common schools in their respective cities or districts.” This act was considered by the Monroe General Term in September, 1867, in the casé of St. Patrick's Orphan Asylum v. Board of Education of the City of Rochester (34 How. Pr. 227). The provisions of the act were substantially re-enacted in the Consolidated School Law of the State. (Laws of 1894, chap. 556, tit. 15, art. 12, § 32.) Under these acts the city of Rochester has, through its board of education, uniformly furnished the orphan asylums of the city with moneys for the secular education of their children, and among them the asylum here in question. The children have been treated as other school pupils have been ; monthly reports of attendance in. the form used by the public schools have been made to the board of education and incorporated into its records. They have been in eluded in the total number of children in the common schools reported by the board of education to the common council, forming the basis upon which school-funds have been raised, and have been reported by the superintendent of public instruction of the city of Rochester to the State Superintendent of Public Instruction, and .the number of teachers. in the schools, including those in the asylums, has been made a basis for the distribution of the funds of the State made by the State Superintendent to the city of Rochester.

These provisions of statute and the system adopted thereunder were not interfered with by the new Constitution. (People ex rel. Inebriates’ Home v. Comptroller, 152 N. Y. 399.)

The payment for the services of these four sisters is not, therefore, improper nor an infringement of the provisions of the Constitution of the State. The board of education is the proper agency used by the city, as it has been used during all the years under the legislative acts referred to, to furnish the moneys for the secular education of the children in this orphan asylum. The moneys are raised by the common council and turned over to the board of education and distributed by such board. The propriety, if not necessity, at the present time of providing for the secular education of the children in the asylums in the city of Rochester in their respective institutions cannot well be doubted. The children must have the education, and it can best be afforded them at their own homes in the institutions. The ordinary school buildings are inadequate, and the children can be better governed and controlled where they are than in the general school buildings of the city. They seetn to be well educated by the teachers who have charge of them, and to pass their examinations quite as creditably as do the children attending in the general school buildings of the city. The city of Rochester is a separate educational district and not under the control of the county school superintendents, nor the Superintendent of Public Instruction of the State. The board of education has power, among other things, to provide places for the instruction of the children of the city and to employ teachers. They have power to provide for the instruction of the children in the asylums where they are inmates, and they should be permitted to do so. They have power to employ the sisters who have the care of these children as their secular teachers, and should not be forbidden to do that. The city has to pay the asylums nothing for rent and only a proper compensation for teachers. There being no constitutional objection, there certainly can be no other objection on the part of the taxpayers to this method of providing for the secular instruction of the children in the asylums in question. There can be no doubt as to the .qualifications as teachers, of the sisters whom the hoard of education had a right to employ, and the garb worn by them can do no harm to the children whom they instruct. The children are Catholics by parentage. The garb worn is that of Catholic sisters. It can in no way affect the children injuriously while they are receiving the secular instruction. They receive no religious instruction during the hours devoted to secular instruction. They very properly devote other hours of the day to such religious training as they see fit, the same as parents may do to their own children when not in school but at home. The asylum is the home of these children, the only home they have.

We do not deem it essential to discuss other questions raised upon this appeal.

We conclude that the case was properly disposed of by the trial court, and that the judgment should be affirmed, with costs.

McLennan, Spring, Hiscock and Davy, JJ., concurred.

Judgment affirmed, with costs.  