McDonald v. School Bd. of Yankton Independent School Dist. No. 1 of Yankton, 11550

• Decision Date: 09 July 1976
• Docket Number: No. 11550,11550
• Citation: 90 S.D. 599,246 N.W.2d 93
• Parties: Donald J. McDONALD, guardian ad litem for William J. McDonald, a minor, Petitioner and Relator, Respondent, v. The SCHOOL BOARD OF the YANKTON INDEPENDENT SCHOOL DISTRICT NO. 1 OF YANKTON, South Dakota, et al., Respondents and Appellants.
• Court: South Dakota Supreme Court

Page 93

246 N.W.2d 93

90 S.D. 599

Donald J. McDONALD, guardian ad litem for William J.

McDonald, a minor, Petitioner and Relator, Respondent, v. The SCHOOL BOARD OF the YANKTON INDEPENDENT SCHOOL DISTRICT

NO. 1 OF YANKTON, South Dakota, et al.,

Respondents and Appellants.

No. 11550.

Supreme Court of South Dakota.

July 9, 1976.

Rehearing Denied Sept. 20, 1976.

John R. Kabeiseman, Brady, Kabeiseman, Light & Reade, Yankton, for petitioner and relator, respondent.

William P. Fuller and John E. Simko, Woods, Fuller, Shultz & Smith, Sioux Falls, for respondents and appellants.

COLER, Justice.

The petitioner in this proceeding in mandamus, on behalf of his minor son and 152 other persons similarly situated, seeks to compel the appellant school board and members thereof to budget for and make available textbooks to students of a nonpublic school within the district pursuant to SDCL 13--34--16 and 13--34--16.1. The writ of mandamus was issued by the trial court which found the statutes to be constitutional under both the federal and state constitutions, and respondent has appealed. We reverse.

The appellants challenged both in the trial court and in this court the constitutionality of the statutes under the Establishment Clause of the First Amendment to the United States Constitution, which was made applicable to the states through the Fourteenth Amendment to the United States Constitution. Murdock v. Pennsylvania, 1943, 319 U.S. 105, 108, 63 S.Ct. 870, 87 L.Ed.2d 1292; Cantwell v. Connecticut, 1940, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed.2d 1213.

They have further challenged the constitutionality thereof under the provisions of S.D. Constitution Article VI, § 3, and Article VIII, § 16.

The legislature, by amendment to SDCL 13--34--16 by Session Laws of 1973, Chapter 100, and Session Laws of 1974, Chapter 134, § 1, together with the provisions of SDCL 13--34--16.1 first enacted in 1973 by the same Chapter 100, and subsequently amended by Session Laws of 1974, Chapter 134, § 2, has clearly set forth its intent, in unambiguous terms, that school districts of this state are directed to loan books at their own cost to nonpublic school students as follows:

'13--34--16. All textbooks shall be loaned free to all public and nonpublic school students in grades one through twelve who are enrolled in schools which are supervised in accordance with chapter 13--4. The public school board in each district shall ascertain what textbooks are needed by such students in the district from time to time and shall order the same and shall furnish such books upon request.

'13--34--16.1. Textbooks loaned to children enrolled in a nonpublic school shall be textbooks which are approved by a public school board for use, whether actually used or not, in the particular public school district wherein such nonpublic school is located or in the particular public school district of which the nonpublic school student is a resident. Textbooks loaned by any public school district to nonpublic school students shall not exceed in value fifteen dollars per nonpublic school student in any single school year. Such values shall be determined by the public school district required to furnish the textbooks. The obligation provided herein as to nonpublic school students shall be the obligation of the public school district in which such nonpublic school student is a resident.'

This court in Haas v. Ind. School Dist. No. 1 of Yankton, 1943, 69 S.D. 303, 9 N.W.2d 707, in construing the predecessor statute, SDC 15.1706, determined that the then existing statutory provision did not purport to make textbooks available to students of nonpublic schools and thus avoided the determination of the constitutional issue presented here. It is obvious from the legislative enactments and the history thereof that the legislature made no attempt to overcome that decision until well after the United States Supreme Court decision of Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060, was handed down in 1968.

The latest amendments to SDCL 13--34--16 and 13--34--16.1 indicate a heavy reliance on the provisions of New York statutes ¹ which were upheld in Board of Education v. Allen, supra.

An analysis of South Dakota statutes relating to school textbooks, SDCL 13--34, which has been significantly amended in recent years, leaves little language pertaining to that subject. While there are significant differences between the South Dakota statutes and those of New York, it would appear sufficient language was adopted by our legislature to accomplish the intended result if the statutes could be held constitutional. While the school district itself determines what textbooks it will use, with review preserved by the state board of education, SDCL 13--34--11, that section and the statutes under consideration herein are all that remain of a once detailed chapter dealing with textbooks.

The trial court's memorandum decision and findings of fact do not reflect, nor does the record before us establish, whether the costs of textbooks are borne by the students or parents of students, or whether those costs are borne by the sectarian institution. The fact of the burden falling upon the parents was found present in both Board of Education v. Allen, supra, and in Meek v. Pittenger, 1975, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217. Both of these cases, in keeping with earlier decisions of that court, see Cochran v. Louisiana State Board of Education, 1930, 281 U.S. 370, 50 S.Ct. 335, 74 L.Ed. 913, have acknowledged that loans of state-owned textbooks to students of sectarian schools constitutes permissible involvement of church and state under the Establishment Clause of the Federal Constitution, provided the tests therein established have been met by state statute.

We do not determine whether the lack of a finding that the parents bear the cost of textbooks or, as also alleged by the appellants, the lack of the legislative policy statement ² renders the provisions of our law void under the tests established in Board of Education v. Allen, supra, and Meek v. Pittenger, supra, as we determine the provisions of our own state constitution are controlling.

Mindful of the decisions of this court which have considered the provisions of S.D.Const. Art. VI, § 3 and Art. VIII, § 16, namely Synod of Dakota v. State, 1891, 2 S.D. 366, 50 N.W. 632; Hlebanja v. Brewe, 1931, 58 S.D. 351, 236 N.W. 296; Haas v. Independent School Dist. No. 1 of Yankton, supra, and South Dakota High School Inter-Scholastic Activities Association v. St. Mary's Inter-Parochial School of Salem, 1966, 82 S.D. 84, 141 N.W.2d 477, we have nevertheless considered in depth recent decisions of courts of other states, as well as the differing constitutional provisions of those states, in which there has been activity in the way of either constitutional amendments or statutes, or both, to accomplish some acceptable mode of giving aid to nonpublic schools. We do not doubt the motives of the legislature of this state in attempting to do equity, considering the pressing and ever-increasing financial demands on both the public and private schools and the burden it places on taxpayers, with a dual burden on parents of children in the nonpublic schools. We are not, however, concerned with the wisdom of the legislation, State v. Nuss, 1962, 79 S.D. 522 114 N.W.2d 633, but only with its constitutionality.

It has long been the rule of this court that:

'When considering the constitutionality of any statute there is a presumption of validity and no statute should be held unconstitutional 'unless its infringement of constitutional restrictions is so plain and palpable to admit of no reasonable doubt', State v. Black Hills Transportation, 71 S.D. 28, 20 N.W.2d 683.' In re Hinesley, 1967, 82 S.D. 552, 150 N.W.2d 834.

Furthermore, as it concerns the power of the legislature, this court has long recognized that:

'The constitution is not a grant but a limitation upon the lawmaking power of the state legislature and it may enact any law not expressly or inferentially prohibited by state and federal constitutions.' Kramar v. Bon Homme County, 1968, 83 S.D. 112, 155 N.W.2d 777.

We have diligently reviewed the history of our constitutional provisions ³ and compared them with other states and have also analyzed recent opinions of other state courts on the identical subject. To a large extent we have gone through the same exercise as has the Nebraska Supreme Court as reflected in Gaffney v. State Department of Education, 1974, 192 Neb. 358, 220 N.W.2d 550. Although the history behind the provisions of Art. VII, § 11, of the Constitution of Nebraska has been preserved as set forth at 220 N.W.2d 553, we are not so fortunate. As reflected in the editor's notes, certain portions of the manuscript covering S.D.Const. Art. III, §§ 2, 3, 4 and 5 were not available for publication as authorized by S.L.1907, Ch. 98 (see S.D. Constitutional Debates, Vol. I, p. 281). Considering the very active participation in the 1883, 1885 and 1889 constitutional conventions by one Alphonso G. Kellam of Brule County, who also served as one of the three members of this court from 1889 to 1896, the likelihood of misapprehension of the purpose to be served by the state constitutional provisions by either the same A. G. Kellam, the then presiding judge of this court, or either of the other two members of the court is too remote to be seriously entertained. Therefore, we must recognize that the holding of this court in Synod of Dakota v. State, supra, to the effect that the provisions of Art. VI, § 3 and Art. VIII, § 16 are 'self-executing,' and that these provisions are expressions of the framers of the constitution 'to prohibit in every form, whether as a gift or otherwise, the appropriation of the public funds for the benefit of or to aid any sectarian school or institution.' 2 S.D. at 373--374, 50 N.W. at 635. ⁴ Those provisions of...