Fannin v. Williams

655 S.W.2d 480, 1983 Ky. LEXIS 290

• Court: Kentucky Supreme Court
• Decided: July 6, 1983
• Status: Published

Opinions

LEIBSON, Justice.

This is a declaratory judgment action challenging the validity of KRS 171.215, a statute supplying textbooks to children in the state’s nonpublic schools (Kentucky Acts, 1978, Ch. 139, effective June 17,1978).

The complaint attacked the nonpublic school textbook statute as unconstitutional under sections 3, 5, 171, 180, 184, 186 and 189 of the Kentucky Constitution; as an unconstitutional delegation of legislative power to administrative officials; and as unconstitutional under the First and Fourteenth Amendments to the Constitution of the United States. On motion for summary judgment, the trial court dismissed all of these grounds.

This summary judgment was appealed. The appeal was transferred from the Court of Appeals to the Supreme Court pursuant to CR 76.18.

The title of the statute in question is:

“AN ACT relating to textbooks and making an appropriation therefor.”

The text of the statute is as follows:

SECTION 1. A NEW SECTION OF KRS CHAPTER 171 IS CREATED TO READ AS FOLLOWS:

“(1) The department of libraries shall purchase textbooks from publishers whose books have been adopted by the state textbook commission for distribution without cost to pupils attending grade one (1) through grade twelve (12) of the state’s nonpublic schools which have been accredited by the state department of education.

(2) The chief school administrator of each eligible school may file a requisition with the state librarian for the books needed for the next ensuing school term. Textbooks eligible for distribution by grade level or subject shall conform to the schedule in use by the state board of education for distribution to the public schools.

(3) The state librarian shall develop rules and regulations governing the purchase, requisition, distribution, assignment to students, care, use and return of textbooks, and a plan for permanently labeling the textbooks as the property of the department of libraries. The rules and regulations shall provide for the allocation of textbooks in a manner reflecting, and not to exceed the expressly limited appropriation to fund the Act. The rules and regulations shall be developed in consultation with the department of education and shall conform, within statutory limits, to the rules and regulations already established by the state board of education.

(4) All textbooks purchased under the provisions of this Act are the property of the state. Each school administrator obtaining books through the department of libraries is custodian of the books in his school. He shall issue the books to the students according to the rules and regulations formulated by the state librarian.

(5) Funds appropriated by the general assembly to the department of libraries for this purpose shall not be expended for any textbooks which present a particular religious philosophy and shall not be considered as or commingled with common school funds and shall be allocated each year to the nonpublic school students as provided by rule'and regulation of the department of libraries to the extent allowed by the appropriation provided in Section 2 of this Act.

Section 2. To carry out the provisions of this Act, there is appropriated to the department of libraries $25,000 for fiscal year 1978-79, which sum shall not lapse but shall be carried forward to the next fiscal year.”

Because we have reached the conclusion, albeit reluctantly, that regardless of its salutory purpose the statute violates the Kentucky Constitution, it would extend this opinion unnecessarily to examine all of the complaints against the constitutionality of the statute and the responses thereto. It is only necessary to deal with the points that compel this conclusion.

Section 171 of the Kentucky Constitution specifies that “Taxes shall be levied and collected for public purposes only.” Is the appropriation of tax money for educating children in nonpublic schools “for public purposes?” These textbooks are for “distribution without cost to pupils attending grade one (1) through grade twelve (12) of the state’s nonpublic schools.” Section 2 of the Act appropriates $25,000 for that purpose.

KRS 158.030 defines a “common school.” It is “an elementary or secondary school of the state supported in whole or in part by public taxation.” It is a term synonymous with “public” school. Sherrard v. Jefferson County Board of Education, 294 Ky. 469, 171 S.W.2d 963 (1943). It is a term treated as mutually exclusive with nonpublic school by the provisions of KRS 159.030, which require compulsory attendance at public school for school age children with certain exceptions, one of which is a child “enrolled and in regular attendance in a private or parochial regular day school approved by the state board of education.” It is these “private or parochial schools” whose services are aided and assisted by the statute in question.

Under the terms of the statute in question, these “nonpublic schools” obtain textbooks for children in their schools on requisition filed by the chief school administrator of each eligible school with the state librarian. The school administrator is then “the custodian of the books in his school.” He is directed to issue the books to the students according to the rules and regulations formulated by the state librarian in consultation with and conformity to rules and regulations established by the State Board of Education.

The only issue for purposes of Section 171 is whether the money is being used for a public purpose. This depends on whether the “use is a public one and is calculated to aid all the people in the state.” Kentucky Building Commission v. Effron, Ky., 310 Ky. 355, 220 S.W.2d 836 (1949). Nonpublic schools are open to selected people in the state, as contrasted with public schools which are open to “all people in the state.”

Section 184 of the Kentucky Constitution provides:

“No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters, and the majority of the votes cast at said election shall be in favor of such taxation.... ”

In Brown v. Board of Education of Newport, 108 Ky. 783, 57 S.W. 612 (1900), we said:

“... (T)he text of (Section 184) shows clearly that the intention was to prohibit the collection of any taxes to any extent for educational purposes other than common schools, without the consent of the people.”

The federal constitution is silent on the subject of education, leaving this most important function to the several states. Our state constitution provides for and regulates this function primarily under the title, “Education,” Sections 183-189 inclusive. These sections start with the requirement that the General Assembly “provide for an efficient system of common schools throughout the state.” They end with the requirement that “no portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian, or denominational school.” A fair reading of these seven sections of the constitution compels the conclusion that money spent on education is to be spent exclusively in the public school system, except where the question of taxation for an educational purpose has been submitted to the voters and the majority of the votes cast at the election on the question shall be in favor of such taxation. Kentucky Constitution, Section 184, supra.

The statute in question seeks to evade constitutional limitations by a series of devices, which do more to point up the constitutional problems than to avoid them. These include:

(1) Directing the department of libraries to purchase and distribute the textbooks instead of the department of education. But the textbooks shall conform to the schedule in use by the state board of education and the rules and regulations for their purchase and use shall be developed in consultation with, and conform to those established by, the state board of education.

(2) The statute states the books are for distribution to the pupils. But it is the private or parochial school administrator who is charged with their requisition, their custodial care, their use and their return.

(3) The textbooks are to be purchased from money appropriated by the general assembly rather than the common school fund. But it is no less public money from public taxes.

The framers of our Constitution did not intend for the legislature to spend public money to support private schools by these devices.

Section 3 of the Kentucky Constitution prohibits payment of public money “to any man or set of men, except in consideration of public services.”

If we were to arbitrarily assume, contrary to the facts, that the statute benefits only the children in the nonpublic schools, to the exclusion of any benefit to the function of the schools, if we were able to completely separate the two, we would then be in conflict with Section 3 of the Constitution. When the statute is confronted foursquare, the dilemma is insolvable.

In Barker v. Crum, 177 Ky. 637, 198 S.W. 211 (1917), the Court ruled that certain students were receiving an exclusive privilege without rendering a public service, so as to violate Section 3 of the Kentucky Constitution, under a law which provided that a certain number of students from each county would receive free tuition, room and board and travel expenses at the state university. The Court explained the language of Section 3: “If the privilege granted is not conferred on all alike it is special or exclusive, and therefore prohibited, unless granted in consideration of services theretofore rendered to the state.” Id., 198 S.W. at 213.

Section 186 of the Kentucky Constitution provides:

“All funds accruing to the school fund shall be used for the maintenance of the public schools of the Commonwealth, and for no other purpose.... ”

In Talbott v. Kentucky State Board of Education, 244 Ky. 826, 52 S.W.2d 727 (1932), we specified that in defining “school fund,” Section 186 includes “money produced by taxation (which) is appropriated for school purposes after the tax is levied or the money collected.”

In Talbott we examined the interplay between Sections 184 and 186 and arrived at this definition of the constitutional limitation on the expenditure of funds for educational purposes:

“It is immaterial that money produced by taxation is appropriated for school purposes after the tax is levied or the money collected. It becomes, as soon as the appropriation is made, a part of the school fund, and its distribution is controlled by these sections of the Constitution. Calling it a fund for the equalization of educational opportunities does not change its character. It is spent in precisely the same manner and for the same purposes as other state school funds, except the method of distribution is changed.”

Section 189 of the Kentucky Constitution provides:

“No portion of any fund of tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian, or denominational school.”

As a device to avoid First Amendment consideration, the United States Supreme Court has reasoned that under a New York textbook statute books are furnished to and for the benefit of the children in private schools and not the schools themselves. Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968).

There are sharp factual differences between Allen and the present case. The book distribution scheme there was based on requests for textbooks filed by individual students, while the distribution scheme here is based on requests by the chief administrator of each eligible school.

But the important difference is legal, not factual. In Allen, the Court decided whether the statute in question violated the seven words in the “establishment of religion” clause in the First Amendment to the United States Constitution. The problem in this case is not whether the challenged statute passes muster under the federal constitution as interpreted by the United States Supreme Court, but whether it satisfies the much more detailed and explicit proscriptions of the Kentucky Constitution. It does not.

The essence of the child benefit argument is that the aid provided flows directly and exclusively to the child and only indirectly, if at all, to the parochial school. Obviously the statute benefits both the children and the private schools who otherwise must make other arrangements for the children to get books. This theory has been considered and rejected in Sherrard v. Jefferson County Board of Education, supra. Specifically, Sherrard held tax money could not be used for the transportation of children attending private schools. This was later held permissible as a “legislation for the health and safety of our children” in Nichols v. Henry, 301 Ky. 434, 191 S.W.2d 930 (1945). But the underlying interpretation of the Constitution in Sherrard was expressly reaffirmed as still the law where the purpose of the statute is educational, rather than health and safety. The purpose for textbooks is educational. Sherrard applies.

The statute in question seeks to avoid Section 184 of the Kentucky Constitution (“no sum shall be raised or collected for education other than in common schools”) by directing that the expenditure shall be from the general fund, rather than school taxes. But Section 3 of the Kentucky Constitution prohibits payment of public money “to any man or set of men except in consideration of public services.” If the exclusive purpose of the statute is to pay the expenses of children in private schools, this constitutional provision has been directly violated. Conversely, if the textbooks also aid in the functioning of the private schools themselves, the other constitutional provisions cited herein have been violated.

The people of Kentucky specified by the language of the Constitution in terms that are clear and unmistakable that the type of expenditure authorized by the statute in question should be unconstitutional. If the people of Kentucky wish to change their position in this matter, it is their right to do so.

As previously noted, Section 184 of the Kentucky Constitution provides that public money can be expended for education other than in common schools when a majority of the legal voters approve the expenditure by public referendum. If the legislature thinks the people of Kentucky want this change, they should place the matter on the ballot.

In sum, the Kentucky Constitution contemplates that public funds shall be expended for public education. The Commonwealth is obliged to furnish every child in this state an education in the public schools, but it is constitutionally proscribed from providing aid to furnish a private education. Pollitt v. Lewis, 269 Ky. 680, 108 S.W.2d 671 (1937). We cannot sell the people of Kentucky a mule and call it a horse, even if we believe the public needs a mule.

Unlike the statute extending transportation to children in nonpublic schools, it is impossible to classify textbooks as anything but educational. As such the statute must meet the constitutional limitations of those sections of the Constitution covering “Education.”

One can argue, quite reasonably, that this statute (and any statute) furthering education is of public benefit, whether selective or not. Unfortunately, this approach begs the question, because the Constitution establishes a public school system and limits spending money for education to spending it in public schools.

Nor are we concerned with the reasons parents send their children to private schools, whether to provide a better secular education, to further their religious education, to avoid busing for desegregation, or whatever. The reason why the children are in private schools would have nothing to do with whether or not they should have free textbooks, if the state could provide them free textbooks in the first place. But the Kentucky Constitutional provisions that restrict spending money for education to public schools, restrict where and how public funds can be expended for education, not just when and why. So we cannot uphold the statute because we could find some public benefit in its purpose. It is constitu-tibnally impermissible because of the manner in which it directs the expenditure of public funds for educational purposes, through nonpublic schools.

As we stated in Commonwealth v. O’Harrah, Ky., 262 S.W.2d 385, 389 (1953):

“Constitutional provisions, whether operating by way of grant or limitation, are to be enforced according to their letter and spirit, and cannot be evaded by any legislation which, though not in terms trespassing on the letter, yet in substance and effect destroy the grant or limitation. “In appraising the validity of the statute we must look through the form of the statute to the substance of what it does. The courts may not countenance an evasion or even an unintentional avoidance of our fundamental law.”

The decision of the trial court is reversed. The case is remanded to the trial court to enter judgment in conformity with this opinion and granting appellants injunctive relief.

STEPHENS, C.J., and GANT, LEIBSON, STEPHENSON and VANCE, JJ., concur. WINTERSHEIMER, J., files a dissent in which AKER, J., joins.