McVey v. Hawkins, 42903

• Decision Date: 08 June 1953
• Docket Number: No. 42903,42903
• Citation: 364 Mo. 44,258 S.W.2d 927
• Parties: McVEY et al. v. HAWKINS et al.
• Court: Missouri Supreme Court

Page 927

258 S.W.2d 927

364 Mo. 44

McVEY et al. v. HAWKINS et al.

No. 42903.

Supreme Court of Missouri, en Banc.

June 8, 1953.

J. Grant Frye, Cape Girardeau, for appellants.

David E. Blanton and Harry C. Blanton, Sikeston, for respondents.

PER CURIAM.

This is an action by resident taxpayers of a Consolidated School District to enjoin the transportation of grade school children by a public school bus for a portion of their way to and from a private parochial school which is located outside of the school district. It appears that such transportation had been expressly authorized by an affirmative vote of the school board and that the entire cost of such transportation had been and was being paid for out of public school funds by warrants drawn upon the 'incidental fund' of the district.

Plaintiffs alleged that the use of public school funds of the school district for the purpose of providing transportation for children attending a parochial school ('operated as a private institution') and certain statutory provisions authorizing state aid for such transportation were violative of various provisions of the state and federal constitutions. The trial court found the issues for defendants and entered judgment accordingly. Plaintiffs have appealed.

With minor modifications we shall adopt the statement of facts from an opinion which was prepared in (but was not adopted by) Division One prior to the transfer of this cause to Court en Banc.

Commerce Consolidated School District No. 9, hereinafter referred to as the Commerce District, lies in the northeastern part of Scott County. Plaintiffs-appellants are resident taxpayers of the district. Defendants-respondents are the county superintendent of schools, the board of education of the district, and the driver of the district school bus. The county superintendent's motion to dismiss as to him was sustained by the trial court and appellants do not complain thereof on this appeal.

Benton Consolidated School District No. 19, hereinafter referred to as the Benton District, lies west of the Commerce District in Scott County. A public elementary or grade school is maintained in the village of Commerce in the Commerce District, and a public secondary or high school is maintained in the village of Benton in the Benton District. The Roman Catholic Church maintains and operates the St. Dennis Catholic School, a private parochial school in Benton, the school offering secular courses up to and including the eighth grade. A half-hour period of religious instruction under the auspices of the Church is given at the St. Dennis Catholic School each school day of the school year. Thirty-one of the children of grade school rating residing in the Commerce District are transported to the public grade school in Commerce; and twenty-two children of high school rating residing in the Commerce District attend the public high school in the Benton District at Enton. Seventeen or eighteen children of grade school rating, the children of families residing in the Commerce District, attend the St. Dennis Catholic School at Benton.

On school days the Commerce District school bus (the property of the Commerce District, maintained by the Commerce District, and operated by the bus driver for a stated salary under contract with the District, the whole expense of the bus operation being payable out of the District's 'incidental fund') moves through the Commerce District over designated roads and transports the (thirty-one) grade school children of the Commerce District to the Commerce grade school at Commerce. During and after this movement the children attending the Benton high school, and the children attending the St. Dennis Catholis School at Benton, board the school bus and are thereafter transported to a point near the line between the Commerce and the Benton Districts. There the children are received and transported by the Benton District school bus to Benton and discharged at the Benton high school or at the St. Dennis Catholic school. This process or routine method of transportation had been in effect for some years, but had been discontinued during the school year of 1948 and 1949. Presumably the free transportation of the pupils was inaugurated under the provisions of Section 165.140 RSMo 1949, V.A.M.S.

In April 1949 there arose a disagreement among the members of the board of education of the Commerce District relating to the transportation of the school children attending the St. Dennis Catholic School. The six members of the board being evenly divided, the county superintendent of schools cast the deciding vote resolving the question in favor of providing for the transportation of the school children attending the St. Dennis Catholic School. The board voted 'to haul' the parochial school children to meet the Benton bus where they could ride that bus to the parochial school in Benton and return. While the petition in the instant action prays for the relief of enjoining the transportation to the St. Dennis Catholic School during the school year of 1950-1951, there was evidence introduced tending to show that the board of education of the defendant Commerce District, or a majority of the members thereof, have said that the transportation of the children attending the St. Dennis Catholic School will be continued unless enjoined.

It is not contended that there is no statute which authorizes transportation of the Commerce District pupils of grade school rating by the Commerce and Benton Districts, or by either or any other District, across the boundary of the Commerce District, and we expressly refrain from examining the question. We shall consider only the constitutional questions raised by the pleadings and urged herein upon this appeal.

Appellants contend that, under the undisputed facts, the conduct of respondents in causing the parochial school children to be hauled in a public school bus to and from a private religious school at public expense and with the public school funds of the district was in violation of specific provisions of the Constitution of Missouri 1945, V.A.M.S., to wit, Art. IX, Sec. 5, providing for the sacred preservation of the State Public School Fund and the restriction of the use of the income therefrom exclusively to the establishment and maintenance of free public schools; Art. IX, Sec. 8, prohibiting any appropriation from any public school fund in aid of any religious creed, church or sectarian purpose, or to help to support any institution of learning controlled by any religious creed, church or sectarian denomination; and Art. I, Secs. 6 and 7, providing that no person can be compelled to erect, support or attend any place or system of worship, or to maintain or support any priest, minister, preacher or teacher of any sect, church, creed or denomination of religion, and that no money shall ever be taken from the public treasury 'directly or indirectly' in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such.

Appellants also insist that Sec. 165.143 RSMo 1949, V.A.M.S., which authorizes state aid or reimbursement for certain costs of transportation of children, including children attending private, religious or sectarian schools, is violative of the same constitutional provisions.

Appellants further contend that respondents's conduct in transporting school children to and from a private religious school at public expense and with public school funds is violative of the rights of appellants under the constitution of the United States, to wit, the First Amendment (made applicable to state action by the Fourteenth Amendment), 'in that it abridges the privileges and immunities of appellants in permitting a practice by the respondents tending to the establishment of a religion.' Appellants argue, however, that 'it will not be necessary to decide the case on the constitution of thet United States,' because relief should be granted on the basis of the state constitutional provisions.

Since respondents question the right of appellants to institute and maintain this action, we shall first determine that question. It is contended that there is no proof that appellants 'pay any substantial amount of school taxes,' as the record is silent as to the amount of school taxes paid by the respective appellants and that appellants have failed to show 'any substantial interest in the transportation of these parochial children.' Respondents further insist that appellants had not exhausted all other remedies because no effort was made to get the Attorney General to institute any litigation with reference to the facts in evidence or to question the legality of the statute. The record shows that appellants, through counsel, sought to have the Prosecuting Attorney of Scott County initiate the litigation and he refused to do so; and that he furnished appellants' counsel with an opinion of the Attorney General of Missouri dated June 9, 1950 to the effect that the legislation relating to the free transportation of pupils attending parochial schools did not violate any constitutional provisions. The opinion referred to was written solely with reference to Sec. 8, Art. IX of the Constitution of Missouri 1945.

The record in this case shows an affirmative vote of the board to provide for the transportation of the parochial children by the public school bus operated at the expense of the district. If the expenditure of public school funds for the purpose mentioned was unlawful, the appellants, as taxpayers, would suffer special and peculiar injury and damage different from the general public. In such case they can maintain an action to enjoin the unlawful expenditure. Appellants' right to institute and maintain the action to test the legality of the use of public school funds for the purpose in question is fully supported by the record presented. Berghorn v. Reorganized School District No. 8,...