Almond v. Day

• Decision Date: 07 November 1955
• Docket Number: No. 4491,4491
• Citation: 89 S.E.2d 851,197 Va. 419
• Court: Virginia Supreme Court
• Parties: J. LINDSAY ALMOND, JR., ATTORNEY GENERAL OF VIRGINIA v. SIDNEY C. DAY, JR., COMPTROLLER OF VIRGINIA. Record

Page 851

89 S.E.2d 851

197 Va. 419

J. LINDSAY ALMOND, JR., ATTORNEY GENERAL OF VIRGINIA v. SIDNEY C. DAY, JR., COMPTROLLER OF VIRGINIA.

Record No. 4491.

Supreme Court of Appeals of Virginia

November 7, 1955. (Extra Session)

J. Lindsay Almond, Jr., Attorney General; Kenneth C. Patty, Assistant Attorney General and Robert D. McIlwaine, III, Assistant Attorney General, for the petitioner.

Hardy C. Dillard, Lindsey Cowen and F. D. G. Ribble, for the respondent.

JUDGE: EGGLESTON

EGGLESTON, J., delivered the opinion of the court.

This is a petition for a writ of mandamus filed by the Attorney General of Virginia to determine the validity of Item 210 of the Appropriation Act of 1954 (Acts of Assembly 1954, ch. 708, p. 970) which appropriates funds for the 'education of orphans of soldiers, sailors and marines' who were citizens of Virginia and were 'killed in action or died, or who are totally and permanently disabled as a result of service during the World War.'

In September, 1955, the Superintendent of Public Instruction contemplated presenting to the Hon. Sidney C. Day, Jr., State Comptroller, approved vouchers authorizing the payment of certain funds appropriated by Item 210 of the Appropriation Act to the parents, guardians, or other persons having custody of children attending public and private institutions and eligible for benefits under the Act. The State Comptroller forwarded to the Attorney General, in writing, an expression of his doubt of the validity of such payments, in view of Section 141 of the State Constitution, and notifying him that he would decline to make them until there was a final adjudication of their validity by this court.

Pursuant to the provisions of Code, § 8-714, the Attorney General filed in this court a petition for a writ of mandamus directing the State Comptroller to issue warrants upon the State Treasurer for the payment of such amounts as are authorized by vouchers approved by the Superintendent of Public Instruction. The petition alleged that the proposed payments were not prohibited by Section 141 of the State Constitution.

The respondent State Comptroller filed an answer admitting the allegations of fact in the petition, but expressing the view that he should not make such payments until it had been adjudicated whether the appropriation contravened Section 141 of the State Constitution, and also Sections 16, 58 and 67 of that Constitution, and the Fourteenth Amendment to the Federal Constitution.

The text of Item 210 of the Appropriation Act of 1954 is copied in the margin. ¹ This Act is the outgrowth of prior acts providing benefits for orphans of soldiers, sailors and marines who entered the military service from Virginia. The first of these was the Act of 1930, ch. 375, p. 810, providing educational opportunities for the orphans of such veterans who were killed in action or died during World War I. The 1930 Act provided for the payment of 'matriculation fees, board and room rent and books and supplies for the use and benefit of' such children who were attending or might attend 'a State educational or training institution of secondary or college grade.'

The 1930 Act was carried in Michie's Code of 1936 as sections 2672b, 2672c and 2672d. As amended ² it was carried in the Code of 1950 as section 23-7.1. In 1952 this section was amended to provide for the payment of such matriculation fees, board and room rent and books and supplies 'at any educational or training institution of collegiate or secondary grade in the State of Virginia approved in writing by the Superintendent of Public Instruction.' This last amendment limited the amount of such expenditures to 'such funds as shall be appropriated for the purpose in the general appropriation acts.' (Acts 1952, ch. 83, p. 100.)

In the meantime by provisions in the several appropriation acts the benefits for eligible children of Virginia veterans had been broadened beyond the provisions of the 1930 Act. In the Appropriation Act of 1932 (Acts 1932, ch. 147, p. 193) provision was made for the payment of matriculation fees, board and room rent, books and supplies 'at any educational institution in the State of Virginia approved in writing by the superintendent of public instruction.'

In substantially the same language funds to provide educational opportunities for the orphans of soldiers, sailors and marines from Virginia who were killed or who died in World Wars I and II, were appropriated for each succeeding biennium. ³ The 1950 Appropriation Act (Acts 1950, ch. 578, p. 1377, Item 129) enlarged the declared purposes by providing for the payment of 'tuition, institutional fees, board, room rent, books and supplies,' in place of the former provision for the payment of 'matriculation fees, board and room rent, books and supplies.' This provision was repeated in the 1952 Act (Acts 1952, ch. 716, p. 1223, Item 203) and in Item 210 of the 1954 Acts (Acts 1954, ch. 708, p. 970).

It thus appears that the provision in Item 210 of the 1954 Appropriation Act of the payment of tuition, institutional fees, etc., of eligible children 'at any educational or training institution of collegiate or secondary grade in the State of Virginia, approved in writing by the Superintendent of Public Instruction,' is by force of its broad language made available for use while such children are attending either sectarian or nonsectarian private schools.

Section 141 of the Constitution of Virginia, as amended in 1952, reads thus:

'State appropriations prohibited to schools or institutions of learning not owned or exclusively controlled by the State or some subdivision thereof; exceptions to rule. -- No appropriation of public funds shall be made to any school or institution of learning not owned or exclusively controlled by the State or some political subdivision thereof; provided, first, that the General Assembly may appropriate funds to an agency, or to a school or institution of learning owned or controlled by an agency, created and established by two or more States under a joint agreement to which this State is a party for the purpose of providing educational facilities for the citizens of the several States joining in such agreement; second, that counties, cities, towns and districts may make appropriations to nonsectarian schools of manual, industrial, or technical training, and also to any school or institution of learning owned or exclusively controlled by such county, city, town, or school district.'

The first question presented is whether the provisions of this section of the Constitution prohibit the payments authorized by Item 210 of the Appropriation Act for tuition, institutional fees and other designated expenses of eligible children attending private schools.

The argument of the petitioner Attorney General runs thus: Section 141, being a restraint on the plenary power of the General Assembly, must be strictly construed; the express language of the section merely prohibits a direct 'appropriation of public funds' to 'any school or institution of learning not owned or exclusively controlled by the State or some political subdivision thereof;' Item 210 is not an appropriation directly to the institutions which the eligible children may attend, but is an appropriation to the parents or guardians of such children, is primarily for the benefit of such children, and only incidentally for the benefit of the selected private schools. Hence, it is said, the appropriation is 'not antagonistic either to the letter or spirit of Section 141.'

The position of the respondent State Comptroller is that the constitutionality of a statute is to be tested by its normal effect and the practical consequences to which it leads; that the provision for the payment of tuition, institutional fees and other designated expenses at a private school, to be attended by children eligible under the Act, is a direct and substantial aid to such institution, and falls within the inhibition of Section 141 which was designed to prohibit such diversion of public funds from the public school system to the aid or benefit of private schools.

Section 141 is found in Article IX of our Constitution embracing the provisions for 'Education and Public Instruction.' Section 129, the first of these provisions, provides that 'The General Assembly shall establish and maintain an efficient system of public free schools throughout the State.' The other sections in Article IX make provision for the establishment and maintenance of such system. Among these is Section 141 which insures that public funds raised by taxation will be under the exclusive control of public authorities, used for the benefit of the public schools, and that no part thereof will be diverted from that purpose to private schools.

It will be observed that the prohibition in Section 141 is in broad and inclusive language. It says, 'No appropriation of public funds shall be made to any school or institution of learning not owned or exclusively controlled by the State or some political subdivision thereof' (italics supplied), with two provisos or exceptions then spelled out. The effect is thus to prohibit all appropriations of public funds to institutions of learning other than those expressly permitted. The prohibition is against any or all aid to the excluded institutions.

The Record of the Debates of the Constitutional Convention of 1901-02 during the framing and adoption of Section 141 shows that its dominant purpose was to aid and maintain the public free school system and to guard against any diversion of public school funds from that purpose.

The first sentence of the section as originally reported by the Committee on Education and Public Instruction prohibited appropriations of public funds to any school or institution of learning 'not owned and exclusively controlled' by the State or some political subdivision thereof. (Debates, Constitutional Convention, Vol. 1, p. 1019.) During the...