Washington State Higher Ed. Assistance Authority v. Graham
| Decision Date | 26 December 1974 |
| Docket Number | No. 43124,43124 |
| Citation | 529 P.2d 1051,84 Wn.2d 813 |
| Parties | WASHINGTON STATE HIGHER EDUCATION ASSISTANCE AUTHORITY, Petitioner, v. Robert V. GRAHAM, as Auditor of the State of Washington, and Wallace G. Miller, as Director of the Washington State Office of Program Planning and Fiscal Management, Respondents. |
| Court | Washington Supreme Court |
Lane, Powell, Moss & Miller, Raymond W. Haman, Barry H. Biggs, Mark E. Johnson, Sp. Assts., Seattle, Sykes, Galloway & Dikeman, Robert S. Amdursky, New York City, for appellant.
Roberts, Shefelman, Lawrence, Gay & Moch, William N. Appel, Sp. Asst., Sally Pasette, Seattle, Slade Gorton, Atty. Gen., Rodney Carrier, Asst. Atty., Gen., Olympia, for respondents.
This is an original proceeding seeking a writ of mandamus against respondents Robert V. Graham, as Auditor for the State of Washington, and Wallace G. Miller, as Director of the Washington State Office of Program Planning and Fiscal Management, to compel respondents to perform certain duties placed upon them by Laws of 1973, 1st Ex. Sess., ch. 120, which chapter is codified as RCW 28B.17, hereinafter referred to as 'the act.'
Respondents refused to carry out those duties, alleging the act to be unconstitutional. The sole question is whether the act is constitutional. Respondents advance several grounds upon which they assert the unconstitutionality of the act.
The burden is upon one who asserts the unconstitutionality of a statute. State v. Hanlen, 193 Wash. 494, 76 P.2d 316 (1938); Gruen v. State Tax Comm'n, 35 Wash.2d 1, 211 P.2d 651 (1949); Casco Co. v. PUD 1, 37 Wash.2d 777, 226 P.2d 235 (1951); State v. Primeau, 70 Wash.2d 109, 422 P.2d 302 (1966); Seattle v. Jones, 79 Wash. 626, 488 P.2d 750 (1971). For this reason, only matters raised by respondents will be considered.
The facts are all contained within the act and the agreed statement of facts. Petitioner is a corporate authority, created to increase the amount of money available for loans to students in post-secondary educational institutions. The act is designed by its terms to aid any disadvantaged and needy student.
who is enrolled, or accepted for enrollment, at a postsecondary educational institution located within the state or a student who is a resident of the state and who is enrolled, or accepted for enrollment, at a postsecondary educational institution wherever located. Laws of 1973, 1st Ex.Sess., ch. 120, § 3(7)(a).
The act directs petitioner to carry out its function by purchasing loans made to eligible students by financial institutions and by educational institutions. The petitioner further may contract in advance to purchase such loans. If the seller is a 'bank' as defined in the act (RCW 28B.17.030(2)) the authority may require the 'bank (to) make new loans in an amount equal to the purchase price received from the authority.' RCW 28B.17.060(1).
Petitioner will receive funds, from at least four sources: (1) a legislative appropriation of $250,000 from the state general fund as a provided in RCW 28B.17.010; (2) donations which petitioner is authorized to accept, RCW 28B.17.130; (3) borrowing as authorized and the issuance of bonds and notes to aid such borrowing, and; (4) income from loans purchased. The power to borrow is mentioned in many parts of the act, some of which provisions will be hereinafter mentioned in detail.
The petitioner is referred to in the act as the 'authority' and its full title is the 'Washington State Higher Education Assistance Authority.' RCW 28B.17.010--28B.17.030(1). Closely associated with petitioner are the Commission on Higher Education created by RCW 28B.81.010 and the Council on Higher Education created by RCW 28B.80.010.
The first question that must be answered is whether the funds of petitioner are public funds. The petitioner is declared to be 'a corporate governmental agency of the state, constituting a public corporation and governing instrumentality.' RCW 28B.17.010. The expenses of petitioner are paid by an appropriation from the general fund of the state. RCW 28B.17.010; Laws of 1973, 1st Ex.Sess., ch. 120, § 23. The definition of 'authority' says it is 'the corporate governmental agency created by RCW 28B.17.010.' RCW 28B.17.030. There are numerous other statements in the act clearly indicative of the public nature of petitioner.
In addition thereto, the petitioner was created by a special act which would be prohibited by the constitution (Const. art. 2, § 28(6) and article 12, section 1) unless the corporation be in fact public in character.
The bonds and notes of the petitioner are made a legal investment for state funds. RCW 28B.17.120. The petitioner, and the bonds and notes issued by it, are exempt from taxation. It is declared to be performing an essential governmental function, and every corporation or person carrying on business within the state is authorized to make donations to petitioner and to deduct the amount of such donations from business and occupation tax. RCW 28B.17.130. Provision is made for transfer of employees from other state agencies, and for other agencies to render services to petitioner. RCW 28B.17.160. Finally, if the existence of petitioner be terminated, the assets of petitioner 'shall pass to and be vested in the state.' RCW 28B.17.190.
All of the foregoing provisions are clearly inconsistent with any thought of petitioner being anything except a public corporation with its funds being public funds. If any other conclusion were to be reached, numerous constitutional provisions would be violated. We hold, therefore, that the Washington State Higher Education Assistance Authority is a public corporation, an instrumentality of government, and that its funds are public funds.
Having determined the funds are public funds, the next problem presented is whether the use of the funds contemplated by the act violates Const. art. 9, § 4 and article 1, section 11. Article 9, section 4 provides: 'All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.' Article 1, section 11 provides in part: 'No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment.'
The whole problem of aid to sectarian schools has been considered by this court on many occasions. The most recent case on that issue was Weiss v. Bruno, 82 Wash.2d 199, 509 P.2d 973 (1973). In that case there is a full discussion of the entire problem. Petitioner contends that the aid herein is different...
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