Paster v. Tussey
| Decision Date | 30 July 1974 |
| Docket Number | No. 58149,58149 |
| Citation | 512 S.W.2d 97 |
| Parties | Robert W. PASTER et al., Appellants, v. C. Ed TUSSEY et al., Respondents, and Mr. and Mrs. Josephus Reynolds et al., Intervenors-Defendants (Partial)Appellants, and John C. Danforth, Attorney General of Missouri, Intervenor-DefendantAppellant. |
| Court | Missouri Supreme Court |
Frank Susman, Lawrence P. Kaplan, Irl B. Baris, Phillip J. Paster, Darwin Portman, St. Louis, for appellants.
Bernard J. Huger, St. Louis, Louis C. DeFeo, Jr., Jefferson City, for intervenors-defendants appellants Reynolds and others.
John C. Danforth, Atty. Gen., D. Brook Bartlett, First Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for intervenor-defendant appellant John C. Danforth.
Edward W. Garnholz, Gus O. Nations, Clayton, Elvis A. Mooney, Bloomfield, Samuel J. Molby, Kansas City, for Missouri Friends of the Public Schools.
G. Dennis Sullivan, Kansas City, amicus curiae.
This appeal involves questions as to whether or not the provisions of the Missouri Constitution of 1945 and the First and Fourteenth Amendments to the United States Constitution prohibit, permit or require the lending of school textbooks to pupils and teachers who, respectively, attend or teach in non-public schools (not operated for profit) as required by Senate Bill 638, 76th General Assembly (Second Regular Session, 1972)--now designated as §§ 170.051 and 170.055, RSMo 1969, V.A.M.S. Such issues were tried in a declaratory judgment action wherein the trial court upheld the constitutionality of the statutory enactments noted in so far as they applied to pupils. Jurisdiction of the appeal therefrom is in this court by virtue of Article 5, § 3 of the Missouri Constitution, V.A.M.S.
Prior to the enactment of Senate Bill 638, statutory provisions for the providing of school textbooks in this state were detailed in § 170.051 (now repealed) and read as follows:
1. Each school board shall purchase from the free textbook fund and from the incidental fund of the district if the free textbook fund is insufficient and furnish free all of the textbooks for all the pupils in the elementary grades of the public schools of the district. The board may provide texts, supplementary texts, library and reference books, and additional instruction supplies, for all the pupils of the district, but funds shall not be expended for these materials for high school pupils until the needs of the elementary grade pupils have been adequately supplied. The books are the property of the district but shall be furnished to the pupils under rules and regulations prescribed by the school board.
2. When the money apportioned under the provisions of section 148.360, RSMo, is received by the treasurers of the various counties and the city of St. Louis, the county clerk of each county shall apportion the money among the various school districts in each county in the following manner: The amount to be apportioned to each school district shall be determined by multiplying the number of children on the last enumeration list of the school district by the ratio used by the state comptroller in making the distribution of the foreign insurance tax moneys among the counties of the state, and the county court shall order the county treasurer to place to the credit of the free textbook fund of each district, the amount thus obtained, or shall draw its warrant in favor of the proper township treasurer for the amount due the districts of the various townships, and shall also draw its warrant in favor of the treasurer of any school district organized as a six-director district for the amount due the district and the money thus received shall be placed to the credit of the free textbook fund of the district.
3. No school board shall pay a higher price for books than is paid by any other school district in this state, or in any other state purchasing textbooks in the open market. No contract for books for a period of more than five years shall be made by any school district under the provisions of this law. Any owner, agent, solicitor or publisher of textbooks who shall offer for sale in this state or sell to any board of directors or board of education textbooks at a higher price than herein specified shall be guilty of a misdemeanor and shall upon conviction thereof be punished by a fine of not less than five hundred dollars and not more than ten thousand dollars for each offense.
The new statute, again identified as § 170.051, now reads as follows:
1. As used in this section, the following terms shall have the meaning indicated unless the context otherwise requires:
(1) 'School' means any elementary or secondary school, public or non-public, nonprofit, within this state, and wherein a resident of the state may legally fulfill the compulsory school attendance requirements of section 167.031, RSMo.
(2) 'Textbook' means workbooks, manuals, or other books, whether bound or in looseleaf form, intended for use as a principal source of study material for a given class or group of students, a copy of which is expected to be available for the individual use of each pupil in such class or group.
2. Each public school board shall purchase and loan free all textbooks for all children who reside in the district and attend an elementary or secondary school in this state.
3. Textbooks shall be loaned to all pupils residing in the district on an equitable basis and without discrimination on the grounds of race, creed, color, national origin, or school attended.
4. Title to and control and administration of the use of all textbooks purchased under this section shall be vested in the public school board and shall be loaned free to pupils and teachers upon their request. The public school board may prescribe rules and regulations governing the loaning of textbooks.
5. No school board shall be required to purchase textbooks to be lent under the provisions of this section and section 170.055 from sources of revenue other than the free textbook fund, except that in addition to the textbooks purchased under this section and section 170.055, a school board may purchase from its incidental fund texts, supplementary texts, library and reference books and instruction supplies, for the use of pupils attending public schools only. In the event that the money from the free textbook fund is insufficient to purchase textbooks for all elementary and secondary pupils, then priority shall be given to elementary pupils.
6. Only textbooks which are filed with the state board of education pursuant to section 170.061, shall be purchased and loaned under this section. No textbooks shall be purchased or loaned under this section to be used in any form of religious instruction or worship.
7. Textbooks shall be purchased from the free textbook fund. No portion of the public school fund referred to in section 5, Article IX constitution of this state, shall be used to pay the cost of textbooks under this section nor shall funds under this section be in any way commingled with the public school fund.
The new § 170.055 is only a re-enactment of subsections 2 and 3 of repealed § 170.051, as they existed prior to passage of Senate Bill 638, and thus has no relevant significance to the questions presented. In each instance, the basic source of revenue for the free textbook fund is the tax imposed by the state on foreign insurance companies for 'business done in this state' as provided in § 148.340.
As would be apparent, the constitutional challenge to the two new sections is directed toward the mandate therein that textbooks be provided to pupils attending private schools (not operated for profit)--including parochial and otherwise; and, in that connection, we would be remiss in not acknowledging the assistance derived from the excellent arguments and briefs of the parties, the Attorney-General (who intervened to argue for the constitutionality of the statutes), and Amici Curiae. Each has sought to interpret the prevailing law, both federal and state, by reference to many decisions handed down by the courts of this country.
As a state court we are charged, primarily, with the duty of ruling on the constitutional validity of the legislative enactments herein challenged in light of those provisions of the Missouri Constitution which are relevant thereto. If such constitutional provisions proscribe the same, we have no alternative in the performance of that duty but to so rule, unless and until such provisions have been made inoperative by the United States Constitution as interpreted and construed by the Supreme Court of the United States or the people of Missouri have amended the same.
For simplicity of reference, we set out portions of the Missouri Constitution found in Article I (captioned--Bill of Rights), Article IX (captioned--Education) and Article X (captioned--Taxation):
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; but if any person shall voluntarily make a contract for any such object, he shall be held to the performance of the same.
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; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.
A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the general assembly shall establish and maintain free public schools for the gratuitous instruction of all persons in this state within ages not in...
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