Appeal, No. 24, March T., 1950, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1949, No. 1552, in case of Thomas A. McKnight et al. v. The Board of Public Education et al. Judgment affirmed.
Hayden C. Covington, with him Walter W. Riehl, for appellants.
Mortimer B. Lesher, Solicitor, for appellees.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
Thomas A. McKnight, and others, appellants, members of the Jehovah's Witnesses, instituted this action
in mandamus against the members of the Board of Public Education of the City of Pittsburgh to compel issuance to them of a permit for the use of the Schenley High School Auditorium on four Sumday afternoons for the purpose of conducting a series of public Bible lectures. Appellees filed preliminary objections to the complaint in mandamus asserting, inter alia, that the complaint established that the intended use of the premises was for religious purposes contrary to the effective rule of the board prohibiting granting of a permit for "any religious or sectarian purposes". This appeal is from the order of the court below sustaining the preliminary objections and from entry of judgment for appellees.
The complaint avers that appellants are Jehovah's Witnesses; that they had planned a series of regular public talks on national and international conditions from a Bible standpoint by chosen speakers in the public school auditorium of Schenley High School in the City of Pittsburgh; that by letter dated September 27, 1948, they requested use of said auditorium for a series of public lectures on four Sunday afternoons, October 10, 17, 24 and 31 from 1:00 p.m. to 5:00 p.m. each afternoon; that they offered to pay the prevailing rental charges; that on September 30, 1948, they were advised by H. W. Cramblet, assistant secretary of appellee school board, that it was impossible to grant the request in view of a rule adopted by the school board which provided: "Permits shall not be granted to anyone for any religious or sectarian purpose"; that denial to them and permission to others to have use of the same auditorium for public meetings constituted arbitrary discrimination, denying to appellants the right of due process of law under the Fourteenth Amendment of the Constitution of the United States, as well as under the Constitution of the Commonwealth of Pennsylvania; that the laws of Pennsylvania provide for use
of school auditoriums as public meeting and assembly places upon application by responsible citizens and residents of the community where the school is located; that appellants' request was in compliance with the statutory requirement; that appellees had a legal ministerial duty to issue the requested permit to appellants, but arbitrarily refused to do so; that denial to appellants of the requested permit amounts to an unconstitutional application of the Pennsylvania statute and authorizes said board to permit the use of schools in an unconstitutional manner; and, that appellants have no other adequate and complete remedy.
A writ of alternative mandamus issued forthwith, returnable November 15, 1948. Subsequent thereto, on November 10, the return day of the writ of alternative mandamus was extended to November 22, 1948. Appellees, on November 19, 1948, filed "Preliminary Objections by Way of Demurrer" averring that appellants are a religious cult or sect; that the desired use of the school auditorium facilities was for religious or sectarian purposes; that there is no averment in the complaint that others were permitted to use the school auditorium for the purpose of holding religious or sectarian meetings; that appellants did not challenge the legality or the reasonableness of the rule of the board prohibiting the granting of permits for use of public school buildings for religious or sectarian purposes; that the laws of Pennsylvania provide, with regard to the use of school auditoriums as public meeting and assembly places, that the board of school directors may permit the use thereof for "social, recreation, and other purposes, under such rules ...