Summary
concluding that school children and the state, but not the schools, were the beneficiaries of the program
Summary of this case from Moses v. RuszkowskiOpinion
No. 29569.
On Motion to Dismiss, November 26, 1928. On the Merits, June 17, 1929. Rehearing Denied July 8, 1929.
Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; Geo. K. Favrot, Judge.
Suit by Silas P. Borden and others against the Louisiana State Board of Education and others. From an adverse judgment, plaintiffs appeal. Affirmed.
Thigpen, Herold, Lee Cousin, Blanchard, Goldstein Walker, Smitherman, Tucker Mason, Pugh Grimmet Boatner, Chas. H. Blish, J.S. Atkinson, and F.E. Greer, all of Shreveport, and C.C. Bird, of Baton Rouge, for appellants.
Percy Saint, Atty. Gen., Peyton R. Sandoz, Asst. Atty. Gen., Burke Smith, of New Iberia, and White, Holloman White, of Alexandria, for appellees.
On Motion to Dismiss Appeal.
Plaintiffs, 17 in number, as citizens and taxpayers, instituted this suit in the district court for the parish of East Baton Rouge for the purpose of obtaining the annulment, on the ground of their unconstitutionality, of certain provisions of Act No. 100 of 1928, commonly known as "The Free Text-Book Act," and of Act No. 143 of 1928, appropriating the necessary funds for the purchase of the text-books. The defendants are the state board of education, state superintendent of public education, state auditor, and state treasurer. In their suit, plaintiffs also seek to enjoin the defendants from providing free school books out of the severance tax and from taking any other action whatever under the provisions of the statutes.
After a hearing on a rule nisi, the court below refused a preliminary injunction on the ground that plaintiffs' petition did not disclose any right or cause of action. Thereupon, plaintiffs applied to this court for writs of certiorari and mandamus, and their application was denied. (Docket No. 29, 540.) They also appealed devolutively from the judgment, and the transcript was subsequently lodged in this court.
The defendants have moved to dismiss the appeal on the ground that the order heretofore rendered by the court denying plaintiffs' application for the remedial writs constitutes, in effect, res judicata between the parties.
But the plaintiffs invoked our supervisory jurisdiction solely to preserve the status quo pending their appeal, a remedy which the court below was powerless to grant. The only question that was before us for decision under the application was whether the relators were entitled to a mandamus compelling the judge of the district court to issue a preliminary injunction. What we said in refusing to grant the mandamus has not deprived plaintiffs of their right of appeal from the judgment which, in effect, dismissed their suit. Act No. 29 of 1924, § 5; Soniat v. White, 155 La. 290, 99 So. 223. The right of the plaintiffs to maintain the action, being a matter determined by the judgment appealed from, cannot be disposed of on a motion to dismiss their appeal. Twomey v. Papalia, 142 La. 621, 77 So. 479. Even in the case of a purely frivolous appeal, the appropriate remedy is not to be found in its dismissal, but in the affirmance of the judgment when the appeal is heard on the merits. Succession of Damico, 161 La. 725, 109 So. 402; Succession of Pavelka, 161 La. 728, 109 So. 403.
For the reasons assigned, the motion to dismiss the appeal herein is denied.
LAND, J., concurs in decree.
On the Merits.
This suit is an attack upon the constitutionality of Acts No. 100 and No. 143 of 1928, in so far as these acts relate to, or appropriate money for, the purchase of school books for the use of the school children of this state. The relief asked for is that these acts be declared unconstitutional and that the Louisiana state board of education, the auditor of public accounts, the state treasurer, and the state superintendent of public education be enjoined from using the money appropriated by the acts for the purchase of school books.
The plaintiffs are citizens and taxpayers of this state, and prosecute this suit as such. Act No. 100 of 1928, which is one of the acts attacked by them, omitting its title, reads as follows:
"Section 1. Be it enacted by the Legislature of Louisiana, That the Severance Tax Fund of the State, as levied by Act 140 of 1922, as amended, shall be devoted after allowing funds and appropriations as provided by the Constitution of the State, first, to supplying school books to the school children of the State of Louisiana, and that thereafter such further sums as remain in the said Severance Tax Fund shall be transferred to the State public school funds.
"Sec. 2. That the State Board of Education of Louisiana shall provide the said school books for school children free of cost to such children out of said tax fund, and thereafter apply the remaining sums out of the said Severance Tax Fund to the State public school funds.
"Sec. 3. That this act shall not apply to persons attending colleges and universities."
Act No. 143 of 1928, the last of the two acts attacked, is the General Appropriation Act. After making various appropriations for the fiscal years 1928-29 and 1929-30, out of the general revenues of the state, and after making certain appropriations out of the severance tax fund, the act (see page 188 of the Acts of 1928) appropriates out of that fund $750,000 for each of those years, the appropriations to be used for the following purpose, to wit:
"For purchase of free school books for the use of school children of this State, to be expended by the State Board of Education of Louisiana as provided by House Bill No. 90 of 1928 [Act 100 of 1928], or so much thereof as may be necessary."
After making the appropriations for school books, the act then provides that the balance of the severance tax fund shall be transferred to the current school fund as provided by House Bill No. 90 of 1928, which is Act No. 100 of 1928, quoted above.
The title of the act making the foregoing appropriations is: "An act making an appropriation to defray the ordinary expenses of the Government; to pay the interest on the public debt; and to support public schools and public charities in the State of Louisiana; to build and repair public levees; to maintain the State Penitentiary; and other State departments for the year commencing July 1, 1928, and ending June 30th, 1929, and for the year commencing July 1st, 1929, and ending June 30th, 1930."
The constitutionality of the two acts under consideration is attacked on various grounds, so far as the acts relate to, or provide for, the purchase and distribution of school books. The pleas of unconstitutionality are leveled in the pleadings against each act separately, with the result that some grounds of attack that might have been leveled specifically against both acts are leveled only against Act No. 100. Plaintiffs, in their brief, however, have considered that, where the pleas are applicable to both acts, they were intended to apply to both, and have so treated them. Defendants have apparently acquiesced in this. In view of this acquiescene, and in view of the fact that the two acts are very closely related, we shall consider that, where a plea is applicable to both acts, and is so discussed in the briefs, it was so intended to apply, and shall state the case accordingly.
Plaintiffs urge that Act No. 100, in so far as it relates to the purchase of school books, contravenes sections 1 and 10 of article 4 of the Constitution of 1921, in that it attempts to draw money from the public treasury without a specific appropriation therefor, and also contravenes section 1 of that article, in that it attempts to draw money from the public treasury for a longer term than two years.
Plaintiffs also urge that Act No. 143 of 1928, so far as relates to the appropriation of money for school books, contravenes section 16 of article 3 of the Constitution, in that the title of the act has nothing in it indicating the intention to make appropriations for the purchase of such books, and that the act also contravenes section 9 of article 4 of the Constitution, in that the appropriations for the purchase of school books are for a purpose other than any of those which by said section may be embraced in the general appropriation bill.
Plaintiffs also urge that both of the foregoing acts, so far as they relate to the purchase and distribution of school books, contravene section 8 of article 4 and section 4 of article 1 of the Constitution, in that they authorize and provide for the expenditure and distribution of public funds for private, charitable, or benevolent purposes to private persons and institutions, and in that they authorize the taking of money from the public treasury for the purpose of teaching religion and are in aid of churches, sects, or denominations of religion; that they violate section 12 of article 4 of the Constitution, in that they lend or grant to private persons, associations, corporations, and institutions funds, credit, property, or things of value, belonging to the state; that they violate section 13 of article 12 of the Constitution, in that they attempt to use public funds for the support of private and sectarian schools; and that they violate section 14 of article 12 of the Constitution, relating to the distribution of public school funds.
Based upon the foregoing allegations of unconstitutionality, plaintiffs close their attack upon the acts by alleging that the expenditure of the severance tax for such illegal purposes is the taking of their property for private purposes, without due process of law, in contravention of section 2 of article 1 of the Constitution of this state, and of the Fourteenth Amendment of the Constitution of the United States, and is an act contrary to the republican form of government, guaranteed to each state by section 4 of article 4 of the Constitution of the United States.
Defendants urge that plaintiffs fail to disclose a right of action. This contention rests upon the ground that a citizen and taxpayer has no standing as such to contest the expenditure of the funds of the state under an alleged unconstitutional statute, and that, even if it were otherwise, plaintiffs do not disclose wherein they would suffer irreparable injury by the expenditure of the money appropriated for the purchase of school books. The members of the court are divided on this question. Four members thereof, namely, the Chief Justice, and Justices LAND, ROGERS, and THOMPSON are of the opinion that plaintiffs, as taxpayers, have a right of action to contest the expenditure of public funds, belonging to the state, under an alleged unconstitutional statute. The members of the court, so thinking, are of the opinion that the case of Donaldson v. Police Jury, on rehearing, 161 La. 480, 109 So. 38, and the decisions there cited, are controlling in this case. On the other hand, Justices ST. PAUL and BRUNOT, and the writer of this opinion think that plaintiffs, as taxpayers, have no right to prosecute this suit, or, in other words, that they have no right of action. In their view Donaldson v. Police Jury is not pertinent here, since it did not involve the funds of the state. In their opinion the question should be decided according to the principles laid down in the case of Sutton v. Buie, 136 La. 234, 66 So. 956, L.R.A. 1915D, 178, and Massachusetts v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078. However, the four members of the court, who think that a right of action is disclosed, are of the opinion that Massachusetts v. Mellon is not appropriate here, as it has reference to a taxpayer of the United States, and that the case of Sutton v. Buie, so far as it maintains that a taxpayer has no right of action in a case like this, is contrary to the great weight of authority and should not be followed. Many of the cases relied on by these members of the court, as showing the weight of authority, may be found in the annotations to Sutton v. Buie, L.R.A. 1915D, 178. From the foregoing, it is obvious that a majority of the court are of the opinion that plaintiffs disclose a right of action. Therefore, the plea that plaintiffs disclose no right of action is overruled.
The overruling of this plea makes it necessary to consider the pleas of unconstitutionality directed against the two statutes by plaintiffs. The contention that Act No. 100 of 1928 violates sections 1 and 10 of article 4 of the Constitution, relative to the manner of making appropriations and fixing a limit upon the time for which appropriations may be made, is not well founded, for the simple reason that Act No. 100 is not, and does not purport to be, an appropriation act. It does not authorize the drawing of anything from the treasury. It merely dedicates a part of the severance tax fund, without even specifying the amount, to the purchase of school books. Standing alone the act could have no practical effect, save as a basis for specific appropriations. That such an act is not an appropriation act, but merely an act of dedication, see Fisher v. Steele, Auditor, 39 La. Ann. 447, 1 So. 882; Board of Administrators v. Richhart, 139 La. 446, 71 So. 735; Lionel's Cigar Store v. McFarland, Supervisor, 162 La. 956, 111 So. 341. Since the act is not an appropriation act, it was unnecessary that the Legislature, in passing it, comply with the constitutional provisions relative to the making of appropriations, by making them for specific purposes and specific amounts and for a period not exceeding two years.
The contention that Act No. 143 of 1928 contravenes section 16 of article 3 of the Constitution, because the title of the act fails to indicate the intention of making the appropriations for the purchase of school books, presents the next question for consideration. We have quoted the title of the act in stating the case. In considering the question presented, it should be borne in mind that we are passing upon the sufficiency of the title of the General Appropriation Act, and that every reasonable presumption, supporting the sufficiency of the title, is peculiarly entitled to application, and this, though the sustaining of the plea, in the present instance, would result in declaring null only the appropriations for the purchase of school books. The title of the act is similar to the titles usually used in General Appropriation Acts in this state, and in fact follows the constitutional requirements as to what may be contained in such acts. We think that the title suffices to cause one to anticipate that, upon investigation, some such appropriations may be found in the body of the act. We therefore conclude that the title is sufficient.
The next question to be considered is whether the appropriations for the purchase of school books are such appropriations as may be included in the General Appropriation Act. Section 9 of article 4 of the Constitution reads that: "The General Appropriation Bill shall embrace nothing but appropriations for the ordinary expenses of the government, pensions, the public debt and interest thereon, public schools, public roads, public charities and all state institutions; and such bill shall be so itemized as to show for what account each and every appropriation shall be made. All other appropriations shall be made by separate bills, each embracing but one object." The purpose of this provision is to prevent the incumbering of the general appropriation bill with all kinds of appropriations, thus simplifying it, and thereby reducing the chances of making ill-considered appropriations in the confusion that might otherwise arise, and preventing the retarding of the bill by protracted discussions over matters that more properly should be separately considered. While the provision possesses substantial reasons for its existence, yet consideration should be given the judgment of the Legislature as to what may properly come within it. The Legislature evidently considered that the appropriations for the purchase of school books were sufficiently connected with the ordinary expenses of government to justify their inclusion in the General Appropriation Act. The purpose had in view, in making the appropriations — that of reducing, and if possible of obliterating, illiteracy in this state — was a purpose in which the state was vitally interested, and the necessity for the continuance of the appropriations to accomplish that end was such as to give reasonable grounds to consider the matter an ordinary obligation and expense of government. We are not prepared to say that the Legislature erred in so treating the matter.
We may consider together the objections urged against both acts to the effect that they violate section 8 of article 4, section 4 of article 1, section 13 of article 12, and section 12 of article 4 of the Constitution.
Section 8 of article 4 prohibits, among other things, the taking of money 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 of religion as such, or for private, charitable, or benevolent purposes to any person or community, excepting certain institutions conducted under state authority. Section 4 of article 1 relates to the right to worship God according to the dictates of one's own conscience, and prohibits the passage of laws establishing religion, or the free exercise thereof, or the granting of preferences to, or making discriminations against, any church, sect, or religious creed. Section 13 of article 12 prohibits the using of public funds for the support of any private or sectarian school. Section 12 of article 4 prohibits, among other things, the lending, pledging, or granting the funds, credit, property, or things of value of the state or of any political corporation thereof to or for any person or persons, association, or corporation, public or private.
In our opinion, which is the view of the majority of the court, these acts violate none of the foregoing constitutional provisions. One may scan the acts in vain to ascertain where any money is appropriated for the purchase of school books for the use of any church, private, sectarian, or even public school. The appropriations were made for the specific purpose of purchasing school books for the use of the school children of the state, free of cost to them. It was for their benefit and the resulting benefit to the state that the appropriations were made. True, these children attend some school, public or private, the latter, sectarian or nonsectarian, and that the books are to be furnished them for their use, free of cost, whichever they attend. The schools, however, are not the beneficiaries of these appropriations. They obtain nothing from them, nor are they relieved of a single obligation, because of them. The school children and the state alone are the beneficiaries. It is also true that the sectarian schools, which some of the children attend, instruct their pupils in religion, and books are used for that purpose, but one may search diligently the acts, though without result, in an effort to find anything to the effect that it is the purpose of the state to furnish religious books for the use of such children. In fact, in view of the prohibitions in the Constitution against the state's doing anything of that description, it would be legally impossible to interpret the statute as calling for any such action on the part of the state, for where a statute is susceptible of two constructions, one of which makes it unconstitutional and the other constitutional, the interpretation making it constitutional must be adopted. What the statutes contemplate is that the same books that are furnished children attending public schools shall be furnished children attending private schools. This is the only practical way of interpreting and executing the statutes, and this is what the state board of education is doing. Among these books, naturally, none is to be expected, adapted to religious instruction.
As relates to the contention that the statutes violate section 12 of article 4 of the Constitution, we do not find this contention well founded. The school books are not granted or donated to the children. The donating of them would have been unnecessary to the accomplishing of the purpose of the statutes. It is only the use of the books that is granted to the children, or, in other words, the books are lent to them, which implies that they are to be returned. While it is true that there is a lending here of things of value, belonging to the state, still this lending is not the lending prohibited by the Constitution. The lending there contemplated is a lending not connected with the reasonable exercise of the police power. Where the granting or lending of anything of value, belonging to the state, or any political corporation thereof, is necessary in the reasonable exercise of the police power, section 12 of article 4 of the Constitution was not intended to prevent the granting or lending. Were it otherwise, the state, or a municipal corporation, could not furnish, for instance, vaccine for the prevention of an epidemic. In fact, the Constitution presupposes the existence of the police power and is to be construed with reference to that fact. 12 C.J. § 415, p. 907; 6 R.C.L. § 193, p. 195. The furnishing of school books to the children of the state, for their use, in attending school, tends directly to promote the education of the children of the state and to obliterate illiteracy, thereby improving the morals of the children and promoting the general welfare and safety of the people, and hence comes within the police power. Cf. Barbier v. Connolly, 113 U.S. 27, 5 S. Ct. 357, 28 L. Ed. 923. Our conclusion is that the foregoing pleas, directed against both acts, should be overruled.
The next plea to be considered is that both acts contravene section 14 of article 12 of the Constitution. This section defines what the public school funds of the state shall consist of, and provides that such funds, with the exception of poll taxes and the interest on proceeds of lands granted by the United States for the support of public schools, shall be distributed to each parish in proportion to the number of children therein between the ages of 6 and 18 years. The contention is that the parish school boards are, by this section of the Constitution, the proper distributing agencies of all school funds, excepting poll taxes and the interest on the proceeds of land, and not the state board of education. From this, plaintiffs draw the conclusion that the state board of education is not the proper agency under the Constitution to expend public school funds for school books. The answer to this is that the severance taxes, from which the appropriations were made, were not a part of the public school fund. They might have been made a part of it by the Legislature, but they were not. This plea should be overruled.
The last question to be considered is that the act violates the due process clauses of the Constitutions of this state and of the United States, and also section 4 of article 4 of the Constitution of the United States. The contention, as to the violation of the due process clauses, is based on the ground that taxes may neither be levied nor expended for any but a public purpose, and that to do either for any but such a purpose amounts to a taking of property without due process of law. It suffices to say that we do not understand that plaintiffs question the legality of the levy, but they do question the legality of the proposed expenditure. We have found, however, that the taxes, here appropriated. are to be spent legally for a public purpose. and this, we think, disposes of the question here presented. As to the violation of section 4 of article 4 of the Constitution of the United States, it is certainly difficult, and we think impossible, to see how the expenditure of public funds for text-books for the use of the children of the state has any tendency to destroy the republican form of government, enjoyed by this state. However, the question here presented is a political one, which does not fall within the jurisdiction of the courts. Pacific States Telephone Telegraph Co. v. Oregon, 223 U.S. 118, 32 S. Ct. 224, 56 L. Ed. 377; South Dakota ex rel. Wagner v. Summers, 33 S.D. 40, 144 N.W. 730, 50 L.R.A. (N.S.) 206, Ann. Cas. 1916B, 860.
The trial judge refused to issue the injunction herein, and rendered judgment accordingly. His decree should be affirmed.
For the reasons assigned, the judgment appealed from is affirmed.
O'NIELL, C.J., dissents for the reasons given by Mr. Justice ROGERS.
ROGERS, J., concurs in overruling exception of no right of action, but otherwise dissents and hands down reasons.
THOMPSON, J., concurs in opinion overruling exception of no right of action, otherwise dissents, and concurs in dissenting opinion of Justice ROGERS.
As stated in the majority opinion, I concur in the majority view that the plaintiffs as taxpayers have a right to judicially contest the expenditure of the funds of the state under the alleged unconstitutional legislative acts, but I dissent from the majority view that the acts themselves are not unconstitutional. My opinion is that they are flagrantly unconstitutional in several particulars. The prohibitory clauses of the Constitution violated by the statutes are couched in words so plain and unambiguous that he who runs may read them.
First. Act No. 143 of 1928, so far as it purports to appropriate the sum of $750,000 for the purpose of free school books for the use of the school children of the state, is plainly violative of section 16 of article 3 of the state Constitution. The constitutional provision requires that every legislative act shall have but one object and shall have a title indicative of such object. There is nothing in the title to the statute under discussion which meets the constitutional requirement. The statutory title so far as it is pertinent to the discussion reads: "An act making an appropriation to defray the ordinary expenses of government ***; and to support public schools. ***" (Writers italics.)
The argument advanced in the majority opinion overruling this contention of the plaintiffs is that the title to the act is similar to titles usually used in General Appropriation Acts in this state, and is sufficient to cause one to anticipate that upon investigation some such appropriation may be found in the body of the act.
I admit that the title is similar to titles usually used in General Appropriation Acts, but I assert that no prior General Appropriation Act to which such title is appended contains an appropriation for the purpose of purchasing free school books for all the children of the state. Therefore, I respectfully suggest that the argument on the point in the majority opinion is inapplicable to the issue presented by plaintiffs contention. Nor can I agree with the majority view that the title "suffices to cause one to anticipate that, upon investigation, some such appropriations may be found in the body of the act." For my own part, I think the title suggests the contrary view, namely, that it is such as to cause one to anticipate that, upon investigation, only appropriations for the support of the public schools will be found in the body of the act. That is what the title in plain words says, viz.: "An act making an appropriation *** to support the public schools." (Writers italics.) Whatever else the title may indicate concerning the appropriations made by the statute for other purposes, so far as the appropriations for schools are concerned, it seems to me to be too clear for argument that the statutory title not only indicates but expressly declares that they are made for the support of the public schools, and for the public schools alone. This being the case, the appropriation by the statute for the purchase of free school books for the use of school children, meaning all school children in public, private, or sectarian schools, of the state goes far beyond the object set forth in the statutory title.
Second. Act No. 143 of 1928, so far as the appropriation under review is concerned, is clearly violative of section 9 of article 4 of the state Constitution. The section and article provides:
"The general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the government, pensions, the public debt and interest thereon, public schools, public roads, public charities and all State institutions." (Writers italics.)
A mere reading of the quoted provision discloses that, whether the appropriation be for all schools, public, private, and sectarian, or for the children of such schools, the item complained of by plaintiff is not for any of the purposes or objects enumerated therein. The item is therefore illegally incorporated into the general appropriation bill. The argument that the appropriation falls within the ordinary expenses of the government is, I respectfully suggest, unsound. Such expenses are merely those that are usually and customarily incurred in the regular administration of the governmental affairs. The appropriation in question is the first in the history of the state, so far as I am informed, that has been made by the Legislature to purchase school books for all the children of the state. It purports to dispose partially of a special fund (severance tax fund) created and levied by special laws. The appropriation, in my opinion, is therefore an unusual, and not a usual, one, and is not such an appropriation as has been customarily made to take care of the ordinary running expenses of the state government. If the position of the majority of the court, as expressed in the majority opinion, be correct, then the exceptions set forth in the constitutional provision are superfluous and meaningless, with the single exception of appropriations for the ordinary expenses of government which would comprehend the other expenses enumerated. But the framers of the Constitution ex industria discriminated between the ordinary expenses of government and the other expenses that might be included in the general appropriation bill. Among these other expenses are the expenses for public schools. If the expenses for such schools were not intended by the framers of the Constitution to be included among the ordinary expenses of government, how can it be successfully contended that the expenses of all the schools of the state, necessarily including the public schools, may constitutionally be included among the ordinary governmental expenses? The question, I respectfully submit, answers itself. And the answer becomes more emphatic in the light of section 1 of article 12 of the Constitution, providing that the educational system of the state shall consist only of free public schools and all institutions of learning supported in whole or in part by public funds.
Third. Both statutes, Nos. 100 and 143 of 1928, clearly violate section 8 of article 4 and section 13 of article 12 of the state Constitution.
Section 8 of article 4 contains two provisions prohibiting the withdrawal of funds from the state treasury for sectarian or private purposes, as follows, viz.:
"No money shall ever be taken from the public treasury directly or indirectly in aid of any church, sect or denomination of religion. ***
"No appropriation from the State Treasury shall be made for private, charitable or benevolent purposes to any person or community. ***"
Section 13 of article 12 reads as follows, viz.:
"No public funds shall be used for the support of any private or sectarian school."
It does not require any extended reasoning to produce the conviction that to withdraw money from the public treasury for the purpose of purchasing books to be used in sectarian schools is to use such money "indirectly" if not "directly" in aid of the church, sect, or religious denomination conducting the schools. It is obvious, also, that an appropriation from the state treasury for purchasing books to give or lend directly to all the school children, or indirectly to all the schools, of the state, is an appropriation for private or benevolent purposes.
By section 13 of article 12, supra, the framers of the Constitution have deliberately established the public policy of the state concerning the disposition of its funds for school purposes. The language of the provision is clear and explicit, requiring no interpretation. Its intention is to preserve the school fund for the use of the public schools, by prohibiting the diversion of the fund, or any part thereof, for the support of any private or sectarian school. The wisdom and policy of the constitutional provision is no concern of the courts. Their function is confined solely to its enforcement.
The four members of the court who think that the legislative acts under review are constitutional attempt to avoid the effect of the quoted provisions of the Constitution by holding that they are inapplicable, because the appropriations are made for the purpose of purchasing books for the use of the school children, with a resultant benefit to the state, and not for the schools themselves. In my opinion, this holding is a mere begging of the question. The maintenance of private or sectarian schools, however valuable may be the work which they perform, is not a public purpose so as to justify the expenditure of the public money in their support. School books are as essential to the means of imparting instruction to the children as are other educational appliances, schoolhouses, and school teachers. But I do not believe that any one will contend for a moment that, in the face of the prohibitory clauses of the Constitution, money can be taken from the public treasury for the purpose of furnishing the children in private and sectarian schools with these necessary educational facilities. To say the least, the appropriation of the public funds for the purchase of books for all the school children of the state is an attempt to do indirectly that which cannot be done directly. The argument of resultant benefit to the state must and does fall before the rule of public policy established in the organic law itself that the welfare of the state can be best promoted by prohibiting appropriations from the public treasury in aid of any church, religious denomination, private charitable, or benevolent purpose, private or sectarian school.
Fourth. Another and insuperable objection to the majority view that the statutes under attack are constitutional because they provide for supplying books to the children and not to the schools is to be found in section 12 of article 4 of the Constitution. That section, so far as pertinent to the issue, reads as follows, viz.:
"The funds, credit, property or things of value of the state or of any political corporation thereof, shall not be loaned, pledged or granted to or for any person, or persons, association or corporation, public or private. ***"
It is argued in the majority opinion that the constitutional provision is inapplicable to the case at bar, because the books are not granted or donated but only loaned to the children, which may be legally done in a reasonable exercise of the police power of the state. The statutes themselves do not provide for the return or repossession of the books, nor for any indemnification of the state in the event they are lost, destroyed, or injured. But, be that as it may, the majority view necessarily admits that title to the books remains in the state; that they are property or things of value belonging to the state; and the constitutional provision which I have quoted in express words declares that as such they cannot be loaned to any person or persons. To say that the lending contemplated in the constitutional provision is not such a lending as will take place in case of the books supplied to the children of the state under the authority of the statutes herein attacked is, in my opinion, an inference wholly unwarranted by the language of the provision. Nor is there any room here for the application of the states police power. That power is not absolute and cannot be invoked to sustain legislative acts which in their operation defeat the objects and purposes of the organic law. As I see it, the majority decision writes into the state Constitution a provision that was not incorporated into the original instrument by the framers.
For the foregoing reasons, I think that the judgment appealed from should be annulled, and that the case should be remanded, with instructions to the district judge to issue the injunction prayed for by the plaintiffs.