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District Court of Appeal, First District, Division 2, California.

THE ROMAN CATHOLIC WELFARE CORPORATION OF SAN FRANCISCO, a (California) corporation, Petitioner, v. CITY OF PIEDMONT, a municipal corporation, et al., Respondents.*

Civ. 16466.

Decided: January 24, 1955

Andrew F. Burke, San Francisco, for petitioner. J. Marcus Hardin, City Atty. for the City of Piedmont, Oakland, for respondents. Irving Shore, Marvel Shore, Lawrence Speiser, Philip Adams, Wayne M. Collins, William Coblentz, Kamina K. Gupta, Ruth Church Gupta, George G. Olshausen, San Francisco, amici curiae for American Civil Liberties Union of Northern Cal. Albert C. Agnew, San Francisco, amicus curiae for Protestant Episcopal Bishop of California, a corporation sole. Ira W. Barr, San Francisco, Leo Pfeffer, New York City, Philip Baum, of counsel, amici curiae for American Jewish Congress. J. W. O'Neill, Oakland, amicus curiae for certain property owners.

Petitioner owns a parcel of real property in the City of Piedmont upon which it wishes to erect a building for the purpose of conducting therein ‘instruction in the secular subjects which are taught in the public elementary schools of the State of California, and, in addition, to provide * * * a systematic course of religious training according to the tenets of the Roman Catholic Church.’ It was denied a building permit on the sole ground that the Zoning Ordinance of the City of Piedmont prohibits the conduct of any school within Zone A, wherein petitioner's land is situated, except public schools under the jurisdiction of the Board of Education of the City of Piedmont. There are in Zone A three elementary schools, one junior high school and one high school, under the jurisdiction of the Board of Education of respondent City. Zone A comprises over 98% (98.71%) of the entire area of the City of Piedmont.

While the parties and amici curiae discuss other questions we limit ourselves to the consideration of the single narrow question, which in our judgment is determinative: May the respondent City of Piedmont permit public elementary schools in Zone A and at the same time constitutionally prohibit the conduct of all other elementary schools in the same area? In limiting our consideration to this narrow question we need not decide such collateral questions as: May a City constitutionally exclude all schools without exception from a certain area? May a City permit public elementary, junior high and high schools in an area and constitutionally prohibit private schools not engaged in the same type of education or teaching the same age groups, e. g., colleges, universities, barber schools, dancing schools, business schools etc.? We also eliminate any question of religious discrimination.

It is settled 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. Pierce v. Society of the Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070. Having this basic right in mind no reasonable ground for permitting public schools to be conducted in Zone A and prohibiting all other schools teaching the same subjects to the same age groups can be suggested. The question has not before been passed upon by the California courts but the courts of other jurisdictions have been unanimous in striking down similar legislation. Catholic Bishop of Chicago v. Kingery, 371 Ill. 257, 20 N.E.2d 583; City of Miami Beach v. State, 128 Fla. 750, 175 So. 537; State v. Northwestern Preparatory School, 228 Minn. 363, 37 N.W.2d 370; Phillips v. City of Homewood, 255 Ala. 180, 50 So.2d 267; Lumpkin v. Township Committee of Bernard's Township, 134 N.J.L. 428, 48 A.2d 798; Roman Catholic Archbishop of Diocese of Oregon v. Baker, 140 Or. 600, 15 P.2d 391. The rationale of these decisions is that no reasonable basis of classification exists between, or among, schools furnishing the same type of education to the same class of students.

Strong reliance is placed by respondents and amicus curiae for certain property owners on Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. City of Porterville, 90 Cal.App.2d 656, 203 P.2d 823. In that case an ordinance excluding all churches from a certain zone was upheld. The case is not in point. If respondent City excluded all schools from a certain zone this case would be more relevant, although the exclusion of all elementary schools from over 98% of the City, or from the residence sections thereof (having in mind that most school children normally live in such residence sections), would seem to present a serious question. That, however, is a question that we are not called upon to decide in this case.

The fact that petitioner is a corporation does not deprive it of asserting its basic constitutional rights. Since the Dartmouth College case corporations have always been afforded the protection of basic constitutional provisions.

Let a peremptory writ of mandate issue as prayed.

DOOLING, Justice.

NOURSE, P. J., and KAUFMAN, J., concur.

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