Murrow Indian Orphans Home v. Childers, Case Number: 32620

• Decision Date: 11 June 1946
• Docket Number: Case Number: 32620
• Citation: 197 Okla. 249,171 P.2d 600,1946 OK 187
• Parties: MURROW INDIAN ORPHANS HOME v. CHILDERS, State Auditor, et al.
• Court: Oklahoma Supreme Court

1946 OK 187

171 P.2d 600

197 Okla. 249

MURROW INDIAN ORPHANS HOME v. CHILDERS, State Auditor, et al.

Case Number: 32620

Supreme Court of Oklahoma

Decided: June 11, 1946

Syllabus

¶0 1. STATES - Act of 1945 providing for payments to institutions for care of orphan children held not violative of constitutional inhibition against gifts by state.

H. B. 519, 1945 S.L. 437, does not violate sec. 15, art. 10, or sec. 1, art. 21, Constitution of Oklahoma.

2. SAME - Contract made by Board of Affairs with sectarian eleemosynary institution for care of orphan children held valid.

Contract made by Board of Affairs with a sectarian eleemosynary institution for the care of orphan children, under authority of H. B. 519, 1945 S.L. 437, is valid, and claims presented thereunder, not otherwise objectionable, are payable.

Original action for writ of mandamus by Murrow Indian Orphans Home against C.C. Childers, State Auditor, and A.S.J. Shaw, State Treasurer. Writ granted.

Julian B. Fite, of Muskogee, for petitioner.

Mac Q. Williamson, Atty. Gen., and James W. Bounds, Asst. Atty. Gen., for respondents.

BAYLESS, J.

¶1 Murrow Indian Orphans Home, a corporation, has petitioned this court to assume original jurisdiction of its petition for mandamus, and upon consideration thereof to issue a writ to C.C. Childers, State Auditor of Oklahoma, and A.S.J. Shaw, State Treasurer of Oklahoma, directing them to audit, allow, and pay certain claims filed by said Home against the State of Oklahoma. It is asserted, and not denied by respondents, that the State Board of Affairs, acting under authority of House Bill 519, 1945 S.L. 437, made a contract with Home to care for certain orphan, dependent children; that Home has performed its part of the contract to the extent indicated in the claims filed; and, if the contract is valid, the State of Oklahoma is indebted according to the tenor of the claims. The above-named officials, upon advice of the Attorney General, have refused to audit, allow, or pay the claim for various legal reasons to be discussed later.

¶2 The parties have stipulated the facts here. It appears that the Home was established by those associated with the Baptist denomination, that its main control is by those affiliated with that sect, that it derives a substantial part of its annual support from that source although it receives the most of its support from other sources, and inmates of the Home are offered opportunities to attend church services and are encouraged to do so, most of them attending Baptist services although free to attend any church services they desire. Home makes no pretense of denying its religious background or sectarian character insofar as its organization and management is concerned, but does deny that it proselytes its inmates and insists its inmates are allowed complete freedom of worship. For the purposes of this action, it shows that its operation costs on an average of $225 to $250 per annum per inmate, resulting in a small annual deficit, whereas its contract with the Board of Affairs provides for an annual payment of about $70 per child entrusted to its care by the State of Oklahoma.

¶3 The state officials involved herein do not contradict the inferences drawn from the stipulated facts as above outlined. They rest their rejection of these claims wholly upon section 15, art. 10, and section 5, art. 2, Constitution of Oklahoma.

¶4 We do not discuss section 15 above in this opinion since our decision on that point in Childrens Home & Welfare Association v. Childers, 197 Okla. 243, 171 P.2d 613, is upon the identical point, and what we say there applies here.

¶5 The most serious question is involved in determining the issues raised by consideration of section 5, above. Decisions of this court are cited upon dissimilar issues that are said to be of controlling or persuasive influence. Decisions from other courts substantially similar are presented by both sides from which each derives satisfaction. Section 5 provides in plain language that no public money or property shall ever be appropriated, applied, donated or used, directly or indirectly for the use, benefit, or support of any church, or for the use, benefit, or support of any sectarian institution as such. This court construed that to mean that money raised by public taxes could not be used to pay for the transportation of students to parochial schools. Gurney v. Ferguson, 190 Okla. 254, 122 P.2d 1002. Analysis of the problem presented in the Gurney Case shows that public money was being spent to furnish a service to a parochial school for which no corresponding value was received. However, since school districts are authorized to transport their students to the school buildings and this may be done by district owned buses or by contracts with others to perform the service for compensation, it is not likely that objection could be raised against a school district contracting with some third party, sectarian or secular, to perform this service. Presented in this aspect, there appears a complete distinction between the issue in the Gurney Case and this.

¶6 State cites and relies on Board of Commissioners of Logan County v. State, 122 Okla. 268, 254 P. 710, wherein it was held that the Constitution imposed upon the state the duty and burden of caring for and supporting the insane. In reaching this conclusion, the court cited and discussed section 1, art. 21, Constitution of Oklahoma. Its language is: " . . . the Legislature and the people . . . are hereby authorized to provide by appropriate legislation for the relief and care of needy . . . ". The mandate of section 1, art. 21, above, is that such institutions "shall be established and supported by the State", Board v. State, whereas in addition to the power reserved by section 36, art. 5 of the Constitution, the permissive grant in section 1, art. 25, above, Bailey v. State, 194 Okla. 495, 153 P.2d 235, is that such care and relief may be provided for by appropriate legislation. The Legislature or the people have a discretion in this matter, and may care for needy children through any scheme that seems appropriate to them, omitting, of course, to offend other constitutional provisions. Such a scheme may involve state-given institutional care or placement in the homes of private citizens, or contracting with eleemosynary institutions, or by grants of money, or combinations of these.

¶7 State-owned and supported institutions of the types mentioned herein are not without direct religious influences while avoiding the improprieties of sectarianism. Secular eleemosynary institutions observe this policy. Private homes are basically religious. None of these schemes could be rejected upon a plea such as this. It is not the exposure to religious influence that is to be avoided; it is the adoption of sectarian principles or the monetary support of one or several or all sects that the state must not do. Could these officials refuse to pay claims incurred by the keeping of needy children in private homes under contract where the state deliberately adopted the policy of placing children in homes observing the same religious principles as were practiced by the families from which the children came? We think not.

¶8 The circumstances under which public money could be given, applied, or appropriated to religious institutions without any return to the state, or could be so used as to make apparent the paramount purpose to support such institutions under the guise of receiving value in return, are known and can be recognized and can be stopped.

¶9 When the stipulated facts before us are considered in the light of these principles, we are of the opinion that the objections voiced to the payment of these claims fail. The state is fulfilling a duty to needy children. The institution can render a service that goes far toward the fulfillment of this duty, and for a compensation that is a matter of contract and public record. The matter of the wisdom of the terms of these contracts is for the Legislature and the agency upon which it thrusts the performance of its commands, and so long as they involve the element of substantial return to the state and do not amount to a gift, donation, or appropriation to the institution having no relevancy to the affairs of the state, there is no constitutional provision offended.

¶10 We think that the denominational background and sectarian character of this institution is no barrier to the contract under consideration. The claims, not being otherwise questioned, are valid and should be paid.

¶11 The writ is granted.

¶12 HURST, V.C.J., and OSBORN, WELCH, CORN, and DAVISON JJ., concur. RILEY, J., dissents.

RILEY, J. (dissenting).

¶1 It is said a new idea is painful, even to the intelligentsia, so I shall deal only with tragedies of history, also sometimes voluminous and burdensome. Union of church and state is often productive of religious strife, persecutions, and so, horrible to freedom. The reason for dealing with this aspect of history is that some say it can't happen here. The men who are Justices of the Supreme Court constitute the personnel of an instrumentality of government; they are expendable and so they may not be here if it does happen. The instrumentality and the free government, like Tennyson's brook, must go on forever. I shall not assume the role of a prophet, for I know only the brief epilogue of the state that is Oklahoma. All of this I saw and a part of it I was. At that juncture in the state's history when first the young manhood of it went forth in an effort to save, and did for a time, with the aid of others, save civilization - some of them to return covered with glory for their achievement as at the present time, but all were infested with ideas and cooties. Nevertheless these returned soldiers sought to solve in the Western state and in officialdom the unemployment problem and to build here their homes.

¶2 The men and women thus returning found the state to be...