Mallory v. Barrera

FINCH, Judge

(dissenting).

I respectfully dissent. I would hold that money received by the State of Missouri from the federal government under the provisions of Title I of the Elementary and Secondary Education Act of 1965 (hereinafter Title I) for use in meeting the special educational needs of educationally deprived children in areas with a concentration of children from low-income families does not become “money donated to a state fund for public school purposes” or “public funds” of Missouri subject to the spending proscriptions of the Missouri Constitution applicable to funds properly so classified.

The conclusion in the principal opinion that Mo.Const. Art. I, § 7, Art. IX, § 5, Art. IX, § 8, and perhaps other sections thereof, are applicable to the use of these Title I funds is based on its holding that when received and deposited in the state treasury, they lose their character as federal funds granted to the state for redistribution for the specific purposes for which they were awarded and assume the character of state funds subject to all of the restrictions and limitations imposed by the Missouri Constitution on the appropriation and use of regular state public funds. In so deciding, the principal opinion first finds that such Title I funds constitute “money donated to a state fund for public school purposes”. The quoted words are contained in Mo.Const. Art. IX, § 5, and it is obvious from the opinion, as well as from respondents’ brief wherein this proposition was advanced, that under the principal opinion these Title I funds are subject to Art. IX, § 5. However, the principal opinion overlooks the fact that if this were true, said constitutional provision would require that such Title I funds be invested and only the income therefrom used. Such utilization of this money would not be in accord with Title I and is not how these funds actually are handled. I submit that these Title I funds are not subject to Art. IX, § 5, because they are not “money donated to a state fund for public school purposes”. Instead, they are funds granted the respondents for distribution to local educational agencies for use in a plan which, as the principal opinion recognizes, “must be designed to provide * * * that eligible children enrolled in private schools have the opportunity to participate in Title I programs comparable to those provided like children in the public schools of its area”.

The principal opinion also speaks of these Title I funds becoming “public funds” of Missouri, but I find no authority cited which compels or even supports that conclusion. The legislature has not so treated them. Instead, it has recognized that these Title I funds remain federal funds which are received by respondents for the purpose of being distributed and used in accordance with the terms of the Act. To illustrate, an appropriation bill covering appropriation of these funds to the State Board of Education provided as follows:

“Section 2.360. To the State Board of Education

All allotments, grants and contributions of funds from the federal government, paid into the State Treasury under the provisions of the Elementary Secondary Act, Title I, II and VI for the purpose of administration and distribution to schools

From Federal Funds” Laws 1969, p. 10. Obviously, the legislature did not consider that when these Title I funds were received from the federal government and placed in the state treasury they were thereby converted to general state public funds. They were not so appropriated.

*564 That there is a distinction between state funds and federal money received and distributed by the state (as in the case of Title I funds) and that such federal funds are not subject to constitutional constraints imposed by the Missouri Constitution on Missouri public funds is made crystal clear by Art. III, § 38(a) of the present Missouri Constitution which provides as follows:

“The general assembly shall have no power to grant public money or property, or lend or authorize the lending of public credit, to any private person, association or corporation, excepting aid in public calamity, and general laws providing for pensions for the blind, for old age assistance, for aid to dependent or crippled children or the blind, for direct relief, for adjusted compensation, bonus or rehabilitation for discharged members of the armed services of the United States who were bona fide residents of this state during their service, and for the rehabilitation of other persons. Money or property may also be received from the United States and be redistributed together with public money of this state for any public purpose designated by the United States.”

During extended debate in the constitutional convention on this section, there was an attempt to delete by amendment what is now the last sentence of Art. III, § 38(a). It is apparent from those proceedings that the sponsors of what is now the second sentence of § 38(a) intended thereby to recognize that money would be available to the state from the federal government for redistribution and use for purposes specified by the federal government, some of which might not even be foreseeable at the time of the constitutional convention and which might even be impermissible by means of state funds, and that it was intended by the second sentence of § 38(a) to permit the state to receive and redistribute such federal funds for the purposes specified by the federal government. Receipt thereof is not made mandatory, of course, and the state would be free to decline to accept them. If accepted, however, the distribution of those federal funds was not to be subject to limitations imposed by the Missouri Constitution on the appropriation and use of Missouri’s own public funds.

This court has recognized that funds received for a specific purpose but deposited in the state treasury do not thereby automatically become money “belonging to the state” or state funds which are subject to constitutional proscriptions as to its use. In State ex rel. Stevenson v. Stephens, 136 Mo. 537 , 37 S.W. 506 (1896), the question was whether $100,000 deposited in the state treasury for the narrow purpose of protecting investors in certain companies was money “belonging to the state” and, hence, subject to various constitutional restrictions such as those relied upon by respondents herein. A state statute required that such funds be deposited with the state treasurer. Holding that these funds were not state funds subject to constitutional limitations, the court, in discussing constitutional provisions alleged to be applicable, said at 509:

“It is manifest that these provisions only apply to money ‘belonging to the state.’ The money in question, though it was deposited with the treasurer, was for the specific purpose of making good the security intended for the protection of those dealing with bond investment companies, and was not money belonging to the state, within the meaning of the constitution.”

See also Board of Public Buildings v. Crowe, 363 S.W.2d 598 (Mo.banc 1962); State ex rel. St. Louis Police Relief Ass’n v. Igoe, 340 Mo. 1166 , 107 S.W.2d 929 (1937); State ex rel. Thompson v. Board of Regents, 305 Mo. 57 , 264 S.W. 698 (banc 1924).

That there is a difference between state funds and federal funds earmarked for specific purposes which the state receives and distributes is implied by the language used by this court in its opinion in Paster v. Tussey, 512 S.W.2d 97 (Mo.banc 1974), when it said at 105: “This case involves the expenditure of ‘state’ funds and not the expenditure of ‘federal’ funds.” If, as the principal opinion concludes, Title I federal funds become state funds when received *565 and deposited in the state treasury, there would have been no occasion for a comment such as that made in Paster .

As previously indicated, in my view it is clear that even without Art. III, § 38(a) these federal funds, received for distribution and use in accordance with Title I, do not become public funds of Missouri and are not subject to constitutional constraints imposed on the appropriation and use of Missouri’s own public funds. This conclusion is made even more inevitable by the last sentence of Art. II, § 38(a), when, as here, we deal entirely with federal funds. I should point out that in so concluding, I would not reach or express any opinion on whether that sentence would have the effect of freeing “public money of this state”, when added to federal money, from other constraints contained in the Missouri Constitution. That question is not before us in this case as we deal with Title I funds only. Such an issue can be briefed and decided if and when a case involving that issue is presented. I would hold only that Art. III, § 38(a) permits receipt and distribution of federal money free of constraints imposed by our constitution on the use of Missouri’s public funds.

Having concluded that Title I funds do not become “state funds” or “money donated to a state fund for public school purposes” and are not subject to the constraints of the Missouri Constitution on state public funds, I would so tell the respondents in their declaratory action. I would rule that they are free to implement a plan for administering Title I funds pursuant to the requirements of that act without being bound by the restrictions imposed by the Missouri Constitution on the use of Missouri’s public funds. As pointed out in Wheeler v. Barrera, 417 U.S. 402 , 94 S.Ct. 2274 , 41 L.Ed.2d 159 (1974), modified, 422 U.S. 1004 , 95 S.Ct. 2625 , 45 L.Ed.2d 667 (1975), and in Barrera v. Wheeler, 531 F.2d 402 (8th Cir. 1976), it is incumbent on Missouri, and more particularly respondents, to devise a program which will provide for private school children a program for utilization of Title I funds which is comparable to the program provided for public school children. Various possible alternatives are discussed in the foregoing decisions, the decision in the Eighth Circuit suggesting the possibility that abandonment of such program in Missouri may be necessary if satisfactory comparable programs cannot or are not devised. Of course, whether such plan, when proposed, complies with the requirements of Title I will continue to be, as it has been throughout this extended litigation, a federal question to be decided by the federal courts.