Berghorn v. Reorganized School Dist. No. 8, Franklin County

• Decision Date: 08 June 1953
• Docket Number: No. 43258,No. 1,43258,1
• Citation: 364 Mo. 121,260 S.W.2d 573
• Parties: BERGHORN et al. v. REORGANIZED SCHOOL DIST. NO. 8, FRANKLIN COUNTY et al
• Court: Missouri Supreme Court

Page 573

260 S.W.2d 573

364 Mo. 121

BERGHORN et al. v. REORGANIZED SCHOOL DIST. NO. 8, FRANKLIN COUNTY et al.

No. 43258.

Supreme Court of Missouri, Division No. 1.

June 8, 1953.

Motion for Rehearing or to Transfer to Court en Banc Denied

July 13, 1953.

Bernard J. Huger, Walter H. Pollmann, St. Louis, Leo A. Politte, Washington, Frank W. Jenny, Union, for appellants.

Boyle G. Clark, William H. Becker, E. Massey Watson, Columbia, Clark & Becker, Columbia, of counsel, for respondents.

PER CURIAM.

Action by plaintiffs as resident taxpayers and parents of children of school age in defendant school districts for and on behalf of themselves and all other resident citizens and taxpayers of said districts for a declaratory judgment and injunctive relief against the said districts, the officers and directors thereof, and the Treasurer of Franklin County, Missouri. The alleged ground upon which relief is sought is that defendants are illegally collecting, receiving and spending public tax monies of the state of Missouri and of the said school districts in support of schools which are not free public schools, but are in fact parochial schools in which a sectarian religion is taught and in which the teachers thereof are controlled and governed by a religious denomination, creed and force and in which the policy of the Roman Catholic Church for the combination of religious and secular education is in effect. Relief is sought against said practices and to enjoin the expenditure of public tax monies by defendants for the support and maintenance of schools that are in fact being managed and administered so as to promote the interests of the Roman Catholic Church in violation of the First and Fourteenth Amendments of the Constitution of the United States and Article I, Sections 5, 6, 7 and 10, and Article IX, Section 8 of the Constitution of the State of Missouri, 1945, V.A.M.S. The trial court made detailed findings of fact and entered a declaratory judgment and further granted the injunctive relief sought. Defendants have appealed.

The jurisiction of this court is sought to be invoked on this appeal on the ground that the court's judgment is based squarely upon 'findings that defendants have violated both the State Constitution and the Constitution of the United States', and that certain issues involved require a construction of such constitutions, but no specific provision of the Constitution of the United States has been cited in appellants' brief under points and authorities and there is no contention that any specific provision thereof has been misconstrued by the trial court, nor is any such contention accompanied by an assignment of reasons the construction is erroneous. Accordingly, no federal constitutional question is presented on this appeal. Robinson v. Nick, 345 Mo. 305, 134 S.W.2d 112, 114; City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 380. We take jurisdiction on the ground that the appeal involves a construction of Article I, Sections 5, 6 and 7, and Article IX, Section 8, of the Constitution of the State of Missouri, 1945.

The petition upon which the cause was tried, as amended at the trial, covers some fifty pages of the record. The cause was tried upon what is referred to as an agreed statement of facts, but what is in fact only an agreed statement of facts and evidence, covering some eighty-seven pages, from which evidence the court made a determination of the ultimate facts in issue and entered its declaratory judgment and the injunction decree. The judgment as entered, including the specific findings of fact, the declaratory judgment and the injunction decree covers some thirty-seven pages of the transcript. Space permits only a very brief review of the facts.

Defendant Reorganized School District No. 8, hereinafter referred to as District 8 operates and maintains three primary schools. The schools are known as Gildehaus, Ziegenmeyer and Krakow. The children in attendance at these schools are of grade school age. Until 1931 all three of these schools were operated by the Roman Catholic Church with teachers selected by the Church and religious instruction was given in the classrooms in accordance with the rules and practices of said church regarding parochial schools. Thereafter, these school buildings were respectively used by public school districts, to wit, Gildehaus District 41, Ziegenmeyer District 24 and Krakow District 44. These three districts and another were later consolidated in District 8. The public school buildings and sites at Ziegenmeyer and Krakow were sold and the buildings in which the several parochial schools had been operated were continued in use by District 8. Title to the school buildings is still in the name of the Archbishop of the St. Louis Archdiocese and it is held for the Roman Catholic Church. No rent is paid for the Krakow school building, there is no lease and the nuns who teach therein have their living quarters there, within 150 yards of the Roman Catholic Church in that community. The school building at Gildehaus is on the same tract of land with the priest's house, the nuns' house and the Gildehaus Roman Catholic Church. No rent is paid for its use. The spire of the church and the cupola of the school building are each surmounted by a cross. Another school building owned and used by District 8 is on an adjoining tract. One hundred and fifty dollars per year is paid for the use of the Ziegenmeyer school building.

Defendant Rock Hill School District No. 23, hereinafter referred to as Rock Hill, does not maintain and operate a school, but uses portions of its school funds in paying the tuition of those pupils of said district who attend either of the schools of District 8 or attend other districts. By agreement of defendants and the parents, only the children of Roman Catholic families residing in Rock Hill attend the schools of District 8, while the children of non-Catholic parents in Rock Hill are sent to adjoining districts on the west. The tuition is paid by Rock Hill. There is a large Roman Catholic population in Rock Hill and District 8. Only the three schools mentioned are maintained. In addition to legal holidays recognized by the state board of education, the schools of District 8, adjourn for religious holidays, to wit, Feast of all Saints and the Feasts of the Immaculate Conception.

The teachers in the schools at Gildehaus and Krakow are members of religious orders affiliated with the Roman Catholic Church. The nun teachers at Krakow belong to the Poor School Sisters of Notre Dame, while those at Gildehaus belong to the Sisters of the Adoration of the Most Precious Blood of O'Fallon. These nuns are known and addressed in the schools only by their religious names, not by their legal names. The directors of District 8 have never refused to employ, contract with, or accept a nun assigned to teach in that district by the Mother Superior of one of the above mentioned orders. Since these orders prohibit a nun from living alone, and there is only one teacher at the Ziegenmeyer school, a nun is not employed to teach there, but a Catholic lay-woman. The nuns who teach in the schools of District 8 possess the necessary educational qualifications and they are citizens of the state of Missouri and of the United States. There are no religious symbols or insignia of any kind in the school building at Gildehaus or Krakow and only the cross on the cupola at Gildehaus. Religious books, pamphlets, pictures and literature are not distributed. The giving of religious training in the class rooms of these schools was discontinued after 1931.

Each of the nuns employed at Gildehaus and Krakow are employed at salaries lower than that ordinarily paid for public school teachers of similar education and experience. In the event a nun does not ask for a renewal contract with District 8, the Mother Superior of the religious order to which she belongs, selects another nun to take her place and the new nun calls on the County Superintendent of Schools, has her educational qualifications to teach approved and then attends a meeting of the school board and enters into a contract to teach. The nuns teaching at Krakow and Gildehaus at all times wear their distinctive religious garb, including the emblems and symbols of their religious order. As members of the respective religious orders to which these nuns belong, they have taken vows of poverty, obedience and chastity. 'All gifts, even the smallest are to be given to superiors for general use. * * * Every day teaching sisters are in duty bound to bring to the place appointed by the Superior any money they may have received. * * * The time of a sister belongs to the order.' Poor School Sisters of Notre Dame. Substantially the same is true for the sisters of the Adoration of the Most Precious Blood of O'Fallon. A sister of this order agrees to live her 'whole life in poverty, chastity, and obedience according to the constitution' of the order. 'By the simple vow of poverty, the Sister renounces her right to licitly dispose of anything temporal whatsoever having money value, without the permission of the lawful Superior. Therefore, she is not allowed, without due permission, to appropriate anything to herself by accepting, borrowing, or buying, or to dispose of anything by giving, selling, loaning, changing, locking, concealing, destroying or to permit anything to be destroyed through her fault * * *. Whatever is acquired by the Sisters, even the Superiors, through labor or in respect of the Institute, must be added to the property of the house or Congregation; likewise, all money and securities are to be placed in the common treasury.' Under the church laws (Canon 499) 'All members of religious orders are subject to the Roman Pontiff as their supreme superior to whom they owe obedience, also by virtue of their vows of obedience.'

As applied to this case the record shows that 'The nuns receive their salaries...