Butler v. United Cerebral Palsy of Northern Ky., Inc.

• Decision Date: 15 December 1961
• Parties: Wendell P. BUTLER, Superintendent of Public Instruction, et al., Appellants, v. UNITED CEREBRAL PALSY OF NORTHERN KENTUCKY, INC. et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 203

352 S.W.2d 203

Wendell P. BUTLER, Superintendent of Public Instruction, et al., Appellants, v. UNITED CEREBRAL PALSY OF NORTHERN KENTUCKY, INC. et al., Appellees.

Court of Appeals of Kentucky.

Dec. 15, 1961.

John B. Breckinridge, Atty. Gen., Troy D. Savage, Asst. Atty. Gen., for appellants.

James C. Ware, Covington, for appellees.

PALMORE, Judge.

The Ware Act of the 1960 General Assembly (Senate Bil 253) authorizes public aid to private institutions for the education of 'exceptional children.' Except for the section establishing an appropriation from the general fund, it is set forth in KRS 157.305. This action tests its validity.

In its entirety, KRS 157.305 reads as follows:

'(1) In lieu of the statutory requirements concerning education of exceptional children and until such time as the local boards of education are able to provide adequate instruction and facilities for exceptional children in their respective districts, private schools that are now established and are providing instruction and facilities for exceptional children may qualify as state schools for exceptional children.

'(2) To qualify as a state school for the exceptional children a private school shall:

'(a) Submit to the State Board of Education with its application for such qualification the names and addresses of the governing body of the school. The State Board of Education may approve or disapprove the governing body as it exists or may appoint such additional members thereto as it deems advisable;

'(b) Submit the type of instruction and program now being provided, the qualifications of the instructors employed and the facilities now available. The State Board of Education may approve or disapprove the program, personnel or facilities now existing or it may make its approval contingent on such recommended improvements as it deems advisable.

'(3) Once a school has qualified as a state school for exceptional children, the State Board of Education upon the recommendation of the Superintendent of Public Instruction may allow to such school one hundred dollars annually per exceptional child in average daily attendance; provided that such school meets and continues to meet the standards promulgated by the State Board of Education for schools qualifying under this section.' (1960, c. 107; effective June 16, 1960.)

The superintendent of Public Instruction and Kentucky State Board of Education take the position that the statute violates Sections 3, 27, 28, 59, 171, 177, 184, 186 and 189 of the Constitution of this state, and they appeal from a judgment of the circuit court declaring otherwise.

In its laconic simplicity the act leaves much to be desired. However, it is not ours to disapprove if it can reasonably be upheld. Cf. Bowman v. Frost, 1942, 289 Ky. 826, 158 S.W.2d 945, 946. So, before taking up the constitutional questions, let us dispose of whatever ambiguities can fairly be removed by the process of interpretation.

First, what is meant by 'exceptional children'? Is this euphemistic generality sufficiently definite to state an intelligible legislative intent? Standing alone, we should probably say not, but examined in the context of the whole enactment, we believe it is. Subsection (1) clearly expresses a recognition that there are children not within the normal range of those whom the common school may be equipped to serve. Though we think immediately of the physically or mentally handicapped, the term might also include the exceptionally gifted, the genius. At any rate, it covers those children within this state who would be entitled to attend its common schools, but for whom the state board, in its reasonable discretion, concedes that the program and facilities of a particular school district are thus far inadequate. The power to make the definition more specific lies in the state board of education.

Next arises the question of whether the determinations relating to eligibility are left to the untrammelled discretion of the Superintendent or the state board. This, of course, would attempt to permit the administrative agency to do what Const. § 59 forbids to the legislature itself. Surely this was not intended. On the contrary, subsection (3) speaks of 'standards promulgated by the State Board of Education,' which we regard as a mandate to formulate and establish such reasonable and uniform regulations as are necessary to a just and proper administration of the act.

The main questions we see in this case are these: (1) Does the act have a valid public purpose within the scope of Const. §§ 3, 171 and 177? (2) Does it constitute illegal class or special legislation under Const. §§ 3 or 59? (3) Does it attempt to spend money 'for education' or out of 'the public school fund' within the meaning of Const. §§ 184 and 186? (4) Does it attempt to delegate legislative power to an administrative agency in violation of Const. §§ 27 and 28? (5) Does it authorize aid to sectarian schools, as forbidden by Const. § 189? We shall discuss them in that order.

In Hager v. Kentucky Children's Home Soc., 1904, 119 Ky. 235, 83 S.W. 605, 608, 67 L.R.A. 815, this court said by way of illustration that 'the special education of the deaf and dumb, the blind, and of the feeble minded' can rightfully be made a public charge. Indeed, if it is a valid public purpose to educate anyone at all, must it not be equally so with respect to all who can be elevated to more constructive citizenship by the process of education? What the people through their elected representatives choose to do, whether it be in the form of education or some other type of assistance, in order to develop the capabilities of those who probably otherwise will be either a detriment or a dead weight to society, has the public welfare as its central aim. That is the test of a 'public purpose.' See Carman v. Hickman County, 1919, 185 Ky. 630, 215 S.W. 408; Hendrickson v. Taylor County Farm Bureau, 1922, 196 Ky. 75, 244 S.W. 82; Bowman v. Frost, 1942, 289 Ky. 826, 158 S.W.2d 945; and Industrial Development Authority v. Eastern Kentucky Regional Planning Comm., Ky.1960, 332 S.W.2d 274.

The financial aid provided by this legislation goes directly to the school, but the ultimate beneficiary is the 'exceptional' child. That the state chooses a private institution as its instrumentality does not despoil the public nature of the appropriation, for it has been said 'that the vital point in all such appropriations is whether the purpose is public; and that, if it is, it does not matter whether the agency through which it is dispensed is public or is not that the appropriation is not made for the agency, but for the object which it serves; the test is in the end, not in the means. The limitation put upon the state government by the people is as to what things it may collect taxes from them for, to which it may apply their property through taxation; not upon the means by which or through which it will do it.' Hager v. Kentucky Children's Home Soc., 1904, 119 Ky. 235, 83 S.W. 605, 608, 67 L.R.A. 815.

There is, of course, the risk that in individual instances the payment of $100 per pupil will help the operators of the school without any perceptible increase in benefits to the children. That some of the seeds of public assistance will fall on barren ground is always possible. However, the proper safeguard rests in the regulatory power and responsibility of the state board of education.

Though public aid chiefly benefits a certain class, if its ultimate purpose is to contribute to the welfare of the people of the whole state, it does not constitute a special privilege or emolument within the meaning of Const. § 3. Carman v. Hickman County, 1919, 185 Ky. 630, 215 S.W. 408; Bowman v. Frost, 1942, 289 Ky. 826, 158 S.W.2d 945. Nor does it violate Const. § 171. (Carman v. Hickman County, supra) or Const. § 177 (Hager v. Kentucky Children's Home Soc., supra).

We have no difficulty in concluding that the act does have a valid public purpose within the scope and spirit of Const. §§ 3, 171 and 177.

As to the question of classification, it was held in the Hager case, supra, that an act for the benefit of homeless destitute children of the commonwealth generally was not local or special legislation under Const. § 59 even though one agency was selected for that purpose. In Bowman v. Frost, 1942, 289 Ky. 826, 158 S.W.2d 945, it was held, in effect, that when the legislature in singling out a special class responds to a moral duty of the state it does no violence to Const. § 3. See also Meredith v. Ray, 1942, 292 Ky. 326, 166 S.W.2d 437. 'That some members of the public may derive more benefit than others, even between those who are situated alike or in the same class, is immaterial where the chief function of the expenditure is to minister to the public good * * *.' Hendrickson v. Taylor County Farm Bureau, 1922, 196 Ky. 75, 244 S.W. 82, 84. We think that exceptional children, for whose education the common schools are not adequate, are a proper subject of classification.

There is, however, in this law another classification which has not been questioned but has been considered by us and ought to be mentioned. The public assistance is confined to schools engaged in the education of exceptional children at the time of the enactment. Hence children who may attend other similar schools established thereafter will not have the same benefit. No doubt, however, the legislature wished to forfend against a mushrooming of new 'schools' attracted more by the state aid than by a genuine desire to serve. Probably most of the existing schools are charities, and, if so, it is well that things the kept that way.

Classifications based upon time or existing conditions frequently have been upheld. In Hines v. Jenkins, 1929, 237 Ky. 676, 36 S.W.2d 387, it was held that a city, after permitting 51 gasoline pumps to be installed on its sidewalks, could validly refuse to permit any more. In Opinion of the...