Dickman v. School Dist. No. 62C, Oregon City, Clackamas County

• Decision Date: 15 November 1961
• Parties: , 93 A.L.R.2d 969 William H. DICKMAN, Harold E. Salisbury and Lawrence Smelser, Appellants, v. SCHOOL DISTRICT NO. 62C, OREGON CITY, OF CLACKAMAS COUNTY, Oregon, a municipal corporation, Dale Jacobs, Sherman Washburn, Gene Bonniksen, Howard Klemsen and Laurin Hinman, each in their official capacity as directors of the district school board of defendant school district; and Edwin C. Ditto, in his official capacity as clerk of defendant district, Defendants-Respondents, Ivan B. Carlson, Intervenor-Respondent.
• Court: Oregon Supreme Court

Page 533

366 P.2d 533

232 Or. 238, 93 A.L.R.2d 969

William H. DICKMAN, Harold E. Salisbury and Lawrence Smelser, Appellants, v. SCHOOL DISTRICT NO. 62C, OREGON CITY, OF CLACKAMAS COUNTY Oregon, a municipal corporation, Dale Jacobs, Sherman Washburn, Gene Bonniksen, Howard Klemsen and Laurin Hinman each in their official capacity as directors of the district school board of defendant school district; and Edwin C Ditto, in his official capacity as clerk of defendant district, Defendants-Respondents Ivan B. Carlson, Intervenor-Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 6, 1961.

Decided Nov. 15, 1961.

John D. Mosser, Portland, and Leo Pfeffer, New York City, argued the cause for appellants. With them on the briefs was Steve Anderson, Salem.

Paul R. Biggs, Oregon City, and Roy F. Shields, Portland, argued the cause and submitted a brief for defendants-respondents and intervenor-respondent. With them on the brief were F. Leo Smith and Randall B. Kester, Portland.

Robert Y. Thornton, Atty. Gen., and Catherine Zorn, Asst. Atty. Gen., submitted a brief amicus curiae in support of ORS 337.150.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

O'CONNELL, Justice.

This is a suit in equity brought by plaintiff taxpayers against School District No. 62C, its board and clerk, to enjoin defendants from supplying textbooks without charge for the use of pupils enrolled in St. John's The Apostle School, a parochial school maintained and operated by the Catholic church. Plaintiffs also seek a judicial declaration that the so-called free textbook statute (ORS 337.150), under which distribution was made to the St. John's school and other parochial schools does not authorize defendants to supply textbooks free of charge to church or parochial schools, or if the statute is so construed that it be declared unconstitutional.

Ivan B. Carlson, a resident within School District No. 62C, whose children were enrolled in the St. John's school intervened.

The statute in question, ORS 337.150, reads as follows:

'337.150 (1) Each district school board shall, in the manner specified by ORS 328.520 and 328.525, provide textbooks, prescribed or authorized by law, for the free and equal use of all pupils residing in its district and enrolled in and actually attending standard elementary schools or grades seven or eight of standard secondary schools.

'(2) For the purpose of ORS 328.520, 328.525 and 337.150 to 337.250 a school shall be standard when it meets the standards of the State Board of Education, except with respect to those standards applying to the ratio of pupils to the acre of school site, the square feet of classroom floor space per pupil and the ratio of pupils to teachers in classrooms, and when all teachers engaged in classroom instruction in said school hold a valid Oregon teaching certificate of the proper teaching level. The holding of such a teacher's certificate shall be evidenced by annual registration with the county school superintendent of the county in which the school is situated.'

Plaintiffs attack the constitutionality of the statute on four grounds; (1) it authorizes state aid to religion at public expense in violation of the First Amendment to the United States Constitution as made applicable to the states by the Fourteenth; ¹ (2) the furnishing of such textbooks constitutes a benefit to religious institutions contrary to the provisions of Article I, § 5 of the Oregon Constitution; ² (3) it, in effect, imposes a tax for a non-public purpose and thus deprives plaintiffs of property without due process of law, and (4) it authorizes the expenditure of money not exclusively for the support and maintenance of the common schools and is, therefore, in violation of Article VIII, § 2 of the Oregon Constitution. ³

Plaintiffs rely principally upon the first two grounds in attacking the constitutionality of the statute. The trial court held ORS 337.150 constitutional. Plaintiffs appeal.

For a period of several years the defendant district has furnished free textbooks for the use of the pupils of St. John's school. In a period of three school years these books have cost the district approximately $4,000. The books were purchased by the district from money in its General Fund, a part of which was derived from taxes levied upon real property in the district, including real property owned by plaintiffs. Books furnished by the district under ORS 337.150, whether to public or to parochial schools, are delivered to the persons in charge of the schools--not to the pupils individually. The district also furnishes teacher's editions of each text. The district retains title to the books, a matter of little practical significance however, because the books are not ordinarily retrieved by the district. Textbooks furnished for the use of parochial school students do not differ from those delivered to public schools. A school is not entitled to receive free textbooks unless it complies with standards established by the Oregon statutes as implemented by administrative regulation. The St. John's school met these standards.

The evidence establishes, and the trial judge found, that the purpose of the Catholic church in operating the St. John's school and other similar schools under its supervision is to permeate the entire educational process with the precepts of the Catholic religion. The study guides used by the teachers in St. John's school indicate that, to some extent at least, the use of the textbooks furnished by the district is inextricably connected with the teaching of religious concepts. These study guides were prepared by the superintendent of schools of the Archdiocese of Portland. There is no doubt that the teaching of the subject matter in this manner in a public school would be contrary to law. ⁴

Defendants first challenge plaintiffs' standing to raise any constitutional issue other than the violation of the due process clause of the Fourteenth Amendment. Plaintiffs have not shown, it is argued, a deprivation of any freedom guaranteed by the First Amendment since they do not sue as school children, parents of school children, or as persons whose own religious liberty is threatened. As will appear below, we have chosen to decide the issues presented in this case solely upon the basis of the Oregon Constitution. It is not necessary, therefore, to decide whether under federal law defendants' contention with respect to standing is sound. ⁵

The question of plaintiffs' standing to assert Article I, § 5 in this cause is not directly raised by defendants. The Oregon cases on standing do not provide us with a clear guide. It has been held that for some purposes at lease a person contesting a public expenditure must plead and prove that the threatened action probably will result in a general increase in taxation. ⁶ Plaintiffs did not expressly allege in their complaint that the expenditures made by the defendant district increase the tax burden upon them or upon taxpayers generally, although the claim that such an increase occurs might be inferred from the allegations that plaintiffs are taxpayers, that public moneys were appropriated and expended in the purchase of textbooks for distribution to St. John's school and that this 'constitutes the imposition of a tax.' ⁷ The precise question of whether a taxpayer has standing to contest the expenditure of public moneys for the support of religious education has been passed upon by other courts. In some of the adjudicated cases the taxpayer has been accorded standing even in the absence of allegation or proof that he will be damaged in a pecuniary way. ⁸ And there is support for the proposition that the problem of standing will be overlooked when an issue of unusual importance is presented. ⁹

In the instant case the issue of plaintiffs' standing was not raised by defendants' pleadings. If standing were a jurisdictional matter then, of course, defendants could raise the question at any stage in the proceedings. But we do not so regard it and we hold, therefore, that defendants' failure to raise the issue by a proper pleading constitutes a waiver of that issue. ¹⁰

The First Amendment, as interpreted in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711, 168 A.L.R. 1392 (1946) and Article I, § 5 of the Oregon Constitution prohibit the use of state funds for the benefit of religious institutions. The principal issue presented to us is whether the expenditure of public funds by the defendant school district for the purpose of furnishing textbooks free of charge to pupils of a parochial school is within these constitutional prohibitions.

We have concluded that the expenditure authorized by ORS 337.150 is within the proscription of Article I, § 5 of the Oregon Constitution. It is unnecessary, therefore, to consider plaintiffs' contention that the statute violates also the First or Fourteenth Amendments to the United States Constitution. Nor is it necessary to consider whether Article VIII, § 2 of the Oregon Constitution has been violated.

Article I, § 5 prohibiting the use of public moneys 'for the benefit of any religeous (sic) or theological institution,' was designed to keep separate the functions of state and church and to prevent the influence of one upon the other. In this respect our constitution follows the general pattern of other state constitutions and may be regarded as expressing, in more specific terms, the policy of the First Amendment as it has been explained in the Everson case. ¹¹

The historical setting in which constitutional provisions such as Article I, § 5 were written and the factors which prompted their adoption have been thoroughly explained elsewhere; it is not necessary, therefore, to restate those observations here. ¹² We need only say that we regard the separation of church and state no less important today than it was at the time Article I, § 5 and...