# Paster v. Tussey > Supreme Court of Missouri · July 30, 1974 · 512 S.W.2d 97 URL: https://www.frixlaw.com/law-library/cases/9680183 ## Case - **Full name:** Robert W. PASTER Et Al., Appellants, v. C. Ed TUSSEY Et Al., Respondents, and Mr. and Mrs. Josephus Reynolds Et Al., Intervenors-Defendants (Partial) Appellants, and John C. Danforth, Attorney General of Missouri, Intervenor-Defendant Appellant - **Court:** Supreme Court of Missouri - **Decided:** July 30, 1974 - **Citations:** 512 S.W.2d 97; 1974 Mo. LEXIS 506 - **Precedential status:** Published - **Opinion:** Dissent by Bardgett - **Judges:** Morgan, Donnelly, Seiler, Holman, Henley, Finch, Bardgett - **Cited by:** 29 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9680183 ## How later opinions describe it (automated extraction) - recognizing that the Missouri Constitution’s requirement of separation of church and state is “not only more explicit but more restrictive” than that of the United States ## Opinion text BARDGETT, Judge (dissenting). I respectfully dissent. The provisions of section 170.051, as amended in 1972 by Senate Bill 638, the statute under attack, have been set forth in the principal opinion and need not be repeated here. The contention that Senate Bill 638 as it applies to nonpublic school students is vio-lative of the First Amendment, United States Constitution, clearly has no merit. In Board of Education v. Allen, 392 U.S. 236 , 88 S.Ct. 1923 , 20 L.Ed.2d 1060 (1968), the United States Supreme Court upheld the constitutionality of a New York statute as against a First Amendment attack. The New York statute is, in substance, the same as Senate Bill 638. As of February 1, 1973, fourteen states had enacted laws *106 providing for the furnishing of textbooks and instructional material to pupils of nonpublic schools. Committee for Public Education v. Nyquist, 413 U.S. 756 (1973), loc.cit. 815-816, footnote 2, 93 S.Ct. 2955 , 37 L.Ed.2d 948 . The principal opinion seems to allow for the inference that the U.S. Supreme Court has modified the holding of Allen in Norwood v. Harrison, 413 U.S. 455 , 93 S.Ct. 2804 , 37 L.Ed.2d 723 (1972). Norwood was an equal protection case. It involved the loaning of books by the State of Louisiana to public and nonpublic school children. The court did not declare the Louisiana statute to be viola-tive of the First Amendment nor was the statute held unconstitutional on any other ground. The practice of the State of Louisiana in furnishing textbooks to certain nonpublic schools which engaged in racial discrimination on admission was held to violate the equal protection clause of Amendment Fourteen, U.S. Constitution, and therefore was an activity which a state could not engage in nor lend its aid to by the furnishing of school books. In Norwood the court relied upon Allen in upholding the constitutionality of the school-book statute and in remanding the case to the District Court for the purpose of permitting the District Court to determine whether a particular participating nonpublic school was practicing racial discrimination in its admission policies. If the school was not engaged in racially discriminatory admission practices, the state-supplied-school books were to be made available to the students of that school. The quotation from Norwood appearing in the principal opinion that, “A textbook lending program is not legally distinguishable from the forms of state assistance foreclosed by the prior cases,” does not deal with the type of statute before this court and does not refer to the subject matter of Allen . The “prior cases” referred to must be read in context with the sentence preceding the quotation which is, “This Court has consistently affirmed decisions enjoining state tuition grants to students attending racially discriminatory private schools.” (Emphasis added.) The cases referred to are listed in footnote 6 and they involved racial discrimination. Norwood stands for the proposition that a state cannot use public resources in furtherance of a constitutionally impermissible objective even though the means in and of themselves are constitutionally permissible. In other words, a state may utilize public monies in aid of a public transportation system, such as Bi-State in Missouri, because a statute so providing would be constitutional. But the state could not do so if the transportation system practiced racial discrimination in admitting or seating passengers aboard its vehicles because the discriminatory practice would violate the equal protection clause of Amendment Fourteen. In order for the U.S. Supreme Court to have reached the result it did in Norwood , it was necessary that the holding in Allen be reaffirmed and not modified. This is so because the court affirmatively authorized the distribution of books to nonpublic school children attending nonpublic schools which were not engaged in racially discriminatory admission practices. As noted, Allen involved a statute of New York which is basically the same as Senate Bill 638. The New York Court of Appeals in Board of Education of Central Sch. Dist. No. 1 v. Allen, 20 N.Y.2d 109 , 281 N.Y.S.2d 799 , 228 N.E.2d 791 (1967), held that the New York loaned-books statute did not offend the New York constitutional provisions. Article XI, section 3, of the New York Constitution provides: “Neither the state nor any subdivision thereof shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious *107 denomination, or in which any denomination tenet or doctrine is taught, but the legislature may provide for the transportation of children to and from any school or institution of learning.” Except for the provision relating to transportation of school children, the New York provision is certainly just as restrictive as Art. IX, sec. 8, Mo.Const.1945, set forth in the principal opinion. There is no material difference between the proscriptive language of the New York provision which prohibits the state from using its property credit or any public money — directly or indirectly in aid of — any school —wholly or in part under the control of any religious denomination, or in which any denominated text or tenet is taught, and the provisions of Art. IX, sec. 8, Mo. Const., which prohibits the general assembly from making any appropriation or paying from any public fund whatever, anything in aid of any religious creed, church, or sectarian purpose or to sustain any private school, or other institution of learning controlled by any religious creed, church, or sectarian denomination whatever. In Allen the New York Court of Appeals held, 281 N.Y.S.2d 799, 804 , 228 N. E.2d 791 , 794: “The purpose underlying section 701, found in the Legislature’s own words (L. 1965, ch. 320, sec. 1, supra), belies any interpretation other than that the statute is meant to bestow a public benefit upon all school children, regardless of their school affiliations. There can be no serious suggestion that the declaration of purpose by the Legislature was a verbal smoke screen designed to obscure a nefarious scheme to circumvent the New York State Constitution. No one in the last third of the 20th Century can doubt that a program aimed at improving the quality of education in all schools is a matter of legitimate State concern. “Since there is no intention to assist parochial schools as such, any benefit accruing to those schools is a collateral effect of the statute, and, therefore, cannot be properly classified as the giving of aid directly or indirectly.” The New York court further observed, “Children often, then, fulfill assignments for courses in both public and private schools by means of using and borrowing from public libraries. We do not consider this indirect aid to private or parochial schools.” 281 N.Y.S.2d 804 , 228 N.E.2d 794 . The same, of course, is true in Missouri. The New York court concluded that its school-book statute entails no aid to parochial schools and upheld the statute under the New York and United States Constitutions. On appeal to the U.S Supreme Court in Bd. of Education v. Allen, 392 U.S. 236 , 88 S.Ct. 1923 , 20 L.Ed.2d 1060 (1968), the question was principally whether the New York school-book statute offended Amendment One of'the U.S. Constitution. The U.S. Supreme Court placed principal reliance upon Everson v. Board of Education, 330 U.S. 1 , 67 S.Ct. 504 , 91 L.Ed. 711 (1947). In that case the court upheld a New Jersey law under which New Jersey provided for the transportation of all children to all schools. The court said, 392 U.S. at 243 , 88 S.Ct. at 1926 : “The statute upheld in Everson would be considered a law having ‘a secular legislative purpose and a primary effect that neither advances nor inhibits religion.’ We reach the same result with respect to the New York law requiring school books to be loaned free of charge to all students in specified grades. The express purpose of § 701 was stated by the New York Legislature to be furtherance of the educational opportunities available to the young. Appellants have shown us nothing about the necessary effects of the statute that is contrary to its stated purpose. The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil and ownership remains, *108 at least technically, in the State. Thus no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools. Perhaps free books make it more likely that some children choose to attend a sectarian school, but that was true of the state-paid bus fares in Everson and does not alone demonstrate an unconstitutional degree of support for a religious institution.” Thus it appears that the New York Court of Appeals and the United States Supreme Court used essentially the same criteria in holding the statute constitutional —that the benefit was to the child and not to the school. The principal opinion suggests that the provisions of the Missouri Constitution declaring that there shall be a separation of church and state are more explicit and restrictive than the establishment clause of the U.S. Constitution. It is obvious that more words appear in the Missouri Constitution than in the U.S. Constitution and, therefore, it can' be said to be more explicit. However, I suggest that the reason for this is that the state operates a public-school system whereas the federal government does not do so. I disagree with the suggestion in the principal opinion that the establishment clause of the U.S. Constitution, as construed by the U.S. Supreme Court, is less restrictive than the provisions of the Missouri Constitution. In any event, Wheeler v. Barrera, — U.S. —, 94 S.Ct. 2274 , 41 L.Ed.2d 159 (1974), principally concerned Art. IX, sec. 5, Mo. Const.1945 — not the establishment clause of the Mo. Constitution, (at -, 94 S.Ct. 2274 .) And the question of the impact, if any, of Art. IX, sec. 5, Mo.Const.1945, on the use of purely federal funds under Title I of the Elementary & Secondary Education Act of 1965, as amended 20 U.S.C. sec. 241a et seq., has yet to be determined. Wheeler v. Barrera, supra, at-, 94 S.Ct. 2274 . The fact remains that the subject matter of Senate Bill 638 was held in Cochran v. Louisiana Board of Education, 281 U.S. 370 , 50 S.Ct. 335 , 74 L.Ed. 913 (1930), in considering the provisions of the Louisiana loaned-textbook law thirty-four years ago, to be for a public purpose, and this was reaffirmed in Board of Education v. Allen, 392 U.S. 236, 247 , 88 S.Ct. 1923 , 20 L.Ed. 2d 1060 (1967), and Norwood v. Harrison, 413 U.S. 455, 468 , 93 S.Ct. 2804 , 37 L.Ed. 2d 723 (1973). Nowhere does the Missouri Constitution prohibit the reception of an incidental benefit to a religious institution which may flow from a legislative act which act has a legitimate and constitutional public purpose. The public purpose of Senate Bill 638 is the state’s interest in the quality of secular education which, under Missouri laws, can be received by children by attending nonpublic schools and thereby satisfy the requirements of our compulsory attendance law- — -sec. 167.031, RSMo 1969. The direct beneficiary of Senate Bill 638 is the child and not the school or religious institution. Cochran, supra, Allen, supra, Borden v. Louisiana State Board of Education, 168 La. 1005 , 123 So. 655 (1929), infra, and Chance v. Mississippi State Textbook Rating & Purchasing Board, 190 Miss. 453 , 200 So. 706 (1941), infra. In Borden v. Louisiana State Board of Education, supra, the Supreme Court of Louisiana had before it a Louisiana statute which provided books to all children, including those attending church-related nonpublic schools. The attack upon the statute relevant to our case was that it violated secs. 4, 8, 12, and 14 of Art. 4 of the Louisiana Constitution. The Louisiana Supreme Court summarized those provisions at 123 So. 660 as follows: “Section 8 of article 4 prohibits, among other things, the taking of money from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion, or in aid of any priest, preacher, minister, or teacher of religion as such, or for private, charitable, or benevolent purposes to any person or community, excepting cer *109 tain institutions conducted under state authority. Section 4 of article 1 relates to the right to worship God according to the dictates of one’s own conscience, and prohibits the passage of laws establishing religion, or the free exercise thereof, or the granting of preferences to, or making dis-criminations against, any church, sect, or religious creed. Section 13 of article 12 prohibits the using of public funds for the support of any private or sectarian school. Section 12 of article 4 prohibits, among other things, the lending, pledging, or granting the funds, credit, property, or things of value of the state or of any political corporation thereof to or for any person or persons, association, or corporation, public or private.” It is immediately apparent that the provisions of the Louisiana Constitution and the provisions of the Missouri Constitution are practically identical. Indeed, it would appear that one was copied from the other. The significance of the Borden decision by the Supreme Court of Louisiana is that it is a case in which the constitutional provisions are the same as Missouri’s and the constitutional attacks upon the statute are the same as in this case. The Louisiana Supreme Court upheld the statute saying that the appropriation of money was not for the use of any church, priest, sectarian or even public schools. “The appropriations were made for the specific purpose of purchasing school books for the use of the school children of the state, free of cost to them. It was for their benefit and the resulting benefit to the state that the appropriations were made.” 123 So. 660 . The court further held that the statute did not grant or donate the books to private persons but only loaned them to the children and that the funds from which the appropriations were made were not part of the public school fund. It was also contended that the Louisiana act violated the due process clause of the Louisiana Constitution in that the taxes cannot be levied or expended for any but a public purpose. The court held that the expenditure of public funds for the school books was a public purpose. Cochran v. Louisiana State Board of Education, 168 La. 1030 , 123 So. 664 (1929), was a companion case to Borden, supra, and adopted the opinion in Borden. Cochran was appealed to the United States Supreme Court (Cochran v. Louisiana Board of Education, 281 U.S. 370 , 50 S.Ct. 335 , 74 L.Ed. 913 (1930).) The U.S. Supreme Court unanimously affirmed the holding that the taxing power of the state of Louisiana had been executed for a public purpose saying that the interest of the statute “is education, broadly; its method comprehensive. Individual interests are aided only as the common interest is safeguarded.” 281 U.S. at 375 , 50 S.Ct. at 336 . In Chance v. Mississippi State Textbook Rating & Purchasing Board, 190 Miss. 453 , 200 So. 706 (1941), the Mississippi Supreme Court upheld a state textbook law which provided books to children attending church-related nonpublic schools. The court based its decision upon the “child benefit theory”, holding that the schools were not the beneficiaries of the act and that the lending of books to individual pupils was not a direct or indirect aid to the respective schools which they attended. The Mississippi Supreme Court considered the opinion of the Louisiana Supreme Court in Borden, supra, and the United States Supreme Court’s opinion in Cochran, supra, authoritative, saying that the constitutional and statutory provisions of Mississippi and Louisiana, for all practical purposes, are identical. 200 So. at 712 . In Bowerman v. O’Connor, 104 R.I. 519 , 247 A.2d 82 (1968), the Rhode Island Supreme Court upheld a state textbook law similar to the New York law which was the subject of Allen, supra, on the authority of Allen. The only similar case to the contrary is Dickman v. School District No. 62C, Oregon City, of Clackamas County, 232 Or. 238 , 366 P.2d 533 (1961), and that case was decided before Allen, supra. *110 The opinions of the Supreme Court of Louisiana in Borden, supra, the Supreme Court of Mississippi in Chance, supra, and the New York Court of Appeals in Allen, supra, are significant because the pertinent constitutional provisions of those states are similar to Missouri’s and the courts of these states have upheld loaned-school-textbook laws. In Hickey v. Board of Education of City of St. Louis, 363 Mo. 1039 , 256 S.W.2d 775 (1953),' this court said at 778: “ ‘It is a fundamental principle of constitutional law that a State Constitution is not a grant of power as is the Constitution of the United States but, as to legislative power, it is only a limitation; and, therefore, except for the limitations imposed thereby, the power of the State Legislature is unlimited and practically absolute.’ . . . Those limitations must be ‘expressed in the Constitution or clearly implied by its provisions.’ . A statute will not be held unconstitutional unless it clearly and undoubtedly contravenes some constitutional provision.” The people of Missouri have been no more stringent in writing the Missouri Constitution than the people of New York, Louisiana, and Mississippi have been in writing their constitutions. The longstanding opinions of the highest courts of these three states, dealing with the same issues under similar state constitutional provisions as the instant case presents, constitute strong and persuasive precedent for the conclusion that Senate Bill 638 is not violative of the Missouri Constitution. Art. IX, sec. 8, Mo.Const., permits of the same construction as the New York Court of Appeals, the Supreme Court of Louisiana, and the Supreme Court of Mississippi, gave to their school-book statutes under constitutional provisions similar to Missouri’s and, therefore, adhering to the fundamental principle of construction set forth in Hickey v. Board of Education, supra, I believe Senate Bill 638 is not in conflict with Art. IX, sec. 8, Mo.Const.1945, and should be held to be constitutional. The trial court held that the portion of sec. 170.051, subpar. 4, which requires school boards to provide textbooks to teachers in private schools, to be violative of Art. I, sec. 6, Mo.Const., which provides that no person can be compelled to maintain or support a teacher of any sect, church, creed or denomination of religion, and the principal opinion affirms that portion of the trial court’s decree. That af-firmance is, of course, understandable as it follows this court’s decision on the principal issue in the case — the loaning of secular textbooks to the pupils. However, since I disagree with the decision on the principal issue for the reasons stated supra, I must state that in my opinion the loaning of textbooks to teachers which, under the statute, cannot be used in any form of religious instruction or worship, could' not reasonably be considered as maintaining or supporting a teacher of any religion. Appellants contend that Senate Bill 638 violates Art. IX, sec. 5, Constitution of Missouri, 1945, which prohibits the state public school fund from being used for any purpose other than establishing and maintaining free public schools. The purpose of Art. IX, sec. 5, is to maintain the integrity of the finances of the public schools. It is not directed against religious impaction as such. It has the sole purpose of impeding the use of school funds for non-school purposes, however legitimate. The public schools derive their support from state and local sources. Under Art. X, sec. 11(c), school districts may adopt and increase public school levies on real and personal property within the district. Art. IX, sec. 3(b) provides that at least 25% of the total state revenues, exclusive of interest and sinking fund payments, must be allocated for public school purposes. Art. Ill, sec. 36, establishes expenditures for school purposes as the second priority, coming behind only payments of interest and principal on state indebtedness. The funds which school districts obtain by levy, and their mandatory share of *111 state revenues, may not be used for any purpose not related to the public schools. Furthermore, any funds in excess of the constitutional minimum which the general assembly provides to school districts for public school purposes may not be used for other purposes. But the funds available for the purchase of textbooks are not of that sort. They come from proceeds of a particular tax which are subject to the complete control of the legislature. The legislature has made the fund available for one particular purpose — the purchase of textbooks to be loaned to pupils in all schools of the state. The legislature has not made the fund available for general school purposes. The funds never become school funds. McVey v. Hawkins, 364 Mo. 44 , 258 S.W.2d 927 (1953), and related cases do not apply to this situation. The administration of the funds by school authorities is without significance. Their use of the funds is closely restricted. There is no reason why the legislature may not charge the school officials with additional duties not involving the use of school funds. Nor does the allocation of proceeds of the foreign insurance premium tax to the purchase of books for public school pupils prior to 1972 alter the situation. The legislature at all times had complete control over the proceeds of the tax. It could have repealed the public school provisions which applied prior to 1972 and allowed the proceeds of the tax to go into general revenue. The public schools did not acquire a vested interest in the tax simply because, prior to 1972, they were the beneficiaries of the proceeds of the same tax. The validity of the present allocation must be determined without regard to conditions which existed prior to 1972. In McVey v. Hawkins, supra, the expense of transporting pupils to public and nonpublic schools was paid by the school district out of the “incidental fund”. The court there stated the issue as being “what use or disposition it (Commerce School District) makes of the state school funds or state aid which it has received and does in fact receive from the State School Moneys Fund, which includes part of the annual income derived from the Public School Fund of the State.” The court held that the incidental fund was part of the State School Moneys Fund and the use of that money for the transportation of nonpublic school children was not “for the support of free public schools” and therefore violated Art. IX, sec. 5, Constitution of Missouri 1945. In the instant case, Senate Bill 638 specifically provides that the free textbook funds be kept separate from the school district’s public school fund monies. Therefore, the monies made available by the general assembly for free textbooks to all students never became part of the constitutionally protected public school fund and, consequently, the act does not violate the provisions of Art. IX, sec. 5, of the Constitution of Missouri 1945. For the foregoing reasons I believe that Senate Bill 638 is not violative of the Constitutions of the United States or the State of Missouri and was a lawful exercise of the police power of the State by the general assembly of Missouri and, therefore, I dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9680183. Public record. Not legal advice.