Summary
In State ex rel. Rogers v. Swanson, 192 Neb. 125, 219 N.W.2d 726 (1974), the Relator sued the State Treasurer for refusing to countersign a warrant upon the treasury of the State of Nebraska which had been issued and transmitted to the Treasurer.
Summary of this case from Opinion No. 96079Opinion
No. 39032.
Filed June 20, 1974.
1. Constitutional Law: Time: Statutes. An act of the Legislature that is forbidden by the Constitution at the time of its passage is absolutely null and void, and is not validated by a subsequent amendment to the Constitution authorizing it to pass such an act. 2. Constitutional Law: Statutes. The constitutional validity of an act of the Legislature is to be tested and determined, not by what has been or possibly may be done under it, but by what the law authorizes to be done under and by virtue of its provisions. 3. Constitutional Law: Statutes: Legislature. The Legislature cannot circumvent an express provision of the Constitution by doing indirectly what it may not do directly. 4. Constitutional Law: Records: Legislature. The record of a floor explanation or debate is legislative history, and it may be an extrinsic, secondary source in statutory interpretation. 5. Constitutional Law: Statutes: Legislature. The Legislature may make a reasonable classification of persons, corporations, and property for purposes of legislation concerning them, but the classification must rest upon real differences of situation and circumstances surrounding the members of the class relative to the subject of legislation which render appropriate its enactment. 6. ___: ___: ___. The Legislature may legislate in regard to a class of persons, but it cannot take what may be termed a natural class of persons, split that class in two, and then arbitrarily designate the dissevered fractions of the original unit as two classes and enact different rules for the government of each. 7. Constitutional Law. The guarantee of the Establishment Clause of the First Amendment to the Constitution of the United States is protected against state infringement by the Fourteenth Amendment to the Constitution of the United States. 8. Constitutional Law: Colleges and Universities: Public Funds. We find L.B. 1171 in violation of Article III, section 18, and Article VII, section 11, of the Constitution of Nebraska. 9. ___: ___: ___. We find L.B. 1171 unconstitutional under the Establishment Clause of the First Amendment to the Constitution of the United States.
Appeal from the District Court for Lancaster County: SAMUEL VAN PELT, Judge. Affirmed.
Kutak, Rock, Cohen, Campbell, Garfinkle Woodward, for appellant.
Clarence A. H. Meyer, Attorney General, and Gerald S. Vitamvas, Deputy Attorney General, for appellee.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.
This appeal is from the denial of a petition for mandamus filed by Dr. Vance D. Rogers, relator-appellant. The problem involved is the constitutionality of sections 85-701 to 85-721, R. S. Supp., 1972, hereinafter referred to as L.B. 1171, relating to education in independent institutions of higher education. The statute in brief provides for public grants to students in need of tuition aid to attend private colleges. The District Court determined the statute violated certain sections of the Constitution of Nebraska, and denied relator any relief. Relator perfected this appeal. Respondent-appellee cross-appeals because the trial court did not find a violation of Article I, section 4, Constitution of Nebraska, and also contends that the statute violates the federal constitutional prohibition against state establishment of religion.
Relator sought reimbursement of an expense incurred September 6, 1972, under the statute. On September 13, a warrant upon the treasury of the State of Nebraska was issued and transmitted to respondent, the State Treasurer, who refused to countersign it. The legality of respondent's action depends upon the constitutionality of the statute. The District Court held L.B. 1171 unconstitutional. We affirm.
Respondent invoked Article III, section 18, and Article VII, section 11, of the Constitution of Nebraska, the pertinent provisions reading respectively as follows: "The Legislature shall not pass * * * special laws in any of the following cases, * * *. Granting to any corporation, association, or individual any special or exclusive privileges, immunity, or franchise * * *. * * * where a general law can be made applicable, no special law shall be enacted. * * *
"No sectarian instruction shall be allowed in any school * * * supported in whole or in part by the public funds set apart for educational purposes, * * *. * * * the state Legislature * * * shall * * * (not) make any appropriation from any public fund, * * * in aid of any sectarian or denominational school or college, or any educational institution which is not exclusively owned and controlled by the state * * *."
After enactment of the statute in question, Article VII, section 11, Constitution of Nebraska, was amended. The amendment does not affect the question involved herein. See Whetstone v. Slonaker (1923), 110 Neb. 343, 193 N.W. 749. We there held: "An act of the legislature that is forbidden by the Constitution at the time of its passage is absolutely null and void, and is not validated by a subsequent amendment to the Constitution authorizing it to pass such an act." Whether or not the amendment could possibly be so construed we do not pass upon its effect even though respondent argues the unconstitutionality of the statute under the amended version.
Respondent argues that L.B. 1171 is in violation of Article VII, section 11, of the Constitution of Nebraska, in that it amounts to an appropriation from a public fund in aid of a sectarian or denominational educational institution which is not exclusively owned and controlled by the state or a governmental subdivision thereof. Article VII, section 11, Constitution of Nebraska, was amended by the Constitutional Convention of 1920. The committee on education originally adopted the attitude that such aid should be denied to any educational institution which was not "exclusively controlled by the state." The motion was made that this be amended to read as it presently appears in the Constitution, "exclusively owned and controlled by the state." The proposer of the amendment stated his position as follows: "As far as I am personally concerned, I desire to have the Constitution prohibit any state aid under any guise to any educational institution other than the public school. It is not a difficult matter, if the Legislature sees fit to find an excuse in the interests of general welfare, to make donations under the guise of military training or normal training or what not, in a private institution. I have absolutely no hostility to those institutions, but it will invariably bring on the kind of warfare that this state should stay clear from, if you mingle the state and church even to that extent."
Respondent argues: "We submit that if aid can be extended by a tuition grant of this nature, then the grant could be enlarged and the class of recipients could be enlarged until the state could be paying all tuition for all students in all private educational institutions in the state so long as the students were not pursuing a course of study leading to a degree of theology or divinity. We do not think this is within the intent of this constitutional provision."
The constitutional validity of an act of the Legislature is to be tested and determined, not by what has been or possibly may be done under it but by what the law authorizes to be done under and by virtue of its provisions. United Community Services v. The Omaha Nat. Bank (1956), 162 Neb. 786, 77 N.W.2d 576. In that case we held that the Legislature cannot circumvent an express provision of the Constitution by doing indirectly what it may not do directly. Here the grant is not directly to a private school but rather to a student, but it must be used for tuition at a private school.
The following provisions from section 1 of L.B. 1171 are pertinent herein: "(2) The increasing costs of operating our independent colleges and universities have forced tuition increases which make freedom of choice in education difficult for many of the students of this state; * * * (4) A system of financial assistance to qualified residents of college age will enable them to attend qualified independent institutions of higher learning of their choice in this state." While the tuition payments are to be made to the students, they must be used in a private institution in this state.
It is a reasonable assumption that the intent is to indirectly benefit the private institutions. This is apparent when we consider section 5 of the act which indicates that the amount of the tuition grant to the student shall be based upon the charge of the institution over and above the amount of money he would spend for tuition had he attended the University of Nebraska at Lincoln. In addition, it is to be noted section 6 provides that the state will look to the institution for any refunds that are made on the tuition grants should the student discontinue his attendance. It seems obvious that the Legislature recognized the fact that the student would merely be a conduit through which the funds would be funneled to the educational institution concerned.
The trial judge found the primary intent of the Legislature in enacting L.B. 1171 was to provide financial aid to private colleges and schools in Nebraska through tuition grants to the students attending those institutions, rather than to give financial assistance to resident students to enable them to attend an institution of their choice. He further noted that an examination of the legislative history and particularly the floor debate as well as the practical operation of the legislation indicates a primary concern for the continued solvency and operations of the institutions involved. In Norden Laboratories, Inc. v. County Board of Equalization (1973), 189 Neb. 437, 203 N.W.2d 152, we held: "In the Legislature the record of a floor explanation or debate is legislative history, and it may be an extrinsic, secondary source in statutory interpretation."
In the debate on the bill Senator Carpenter said as follows: "'* * * we have a large number, not a large, a number of privately owned schools of all denominations who I think, as I recall, have about anywhere from 12-1500 vacancies in their dormitories and area of education in which they cannot fill. * * * Now if we don't do something for these private schools, they're going to have to close the doors to some of them.'" On another occasion Senator Carpenter said: "'I would like to find some legal way in order to have the state make a contribution, either in the bill or any other area, in order to use up the unused parts of these private schools.'" Senator Johnson, one of the introducers of the bill, stated: "'Mr. President, members of the legislature, it has been brought out that there are campuses over the state where fine facilities, fine instructors, but they lack students.'" Senator Moylan stated: "'Now it's not only a thing of keeping these colleges alive, it's the case of financial assessts (sic) to the state.'" It thus appears that the trial judge's finding with respect to the intent of the Legislature is adequately shown by the floor debate.
Relator argues that L.B. 1171 does not appropriate state funds to or in aid of institutions of learning not exclusively owned and controlled by the state and that Article VII, section 11, Constitution of Nebraska, was intended to prohibit only those appropriations made directly to private schools for their support and not those appropriations which aid students who attend such colleges. In Almond v. Day (1955), 197 Va. 419, 89 S.E.2d 851, the Virginia court held a law for payment of tuition for orphans of war veterans at secondary schools and colleges approved by the state to be violative of the state's constitutional prohibitions against the appropriation of money to schools or institutions not owned or exclusively controlled by the state or subdivision thereof, or to any sectarian institution. The court interpreted "appropriation to" an institution to have reference to appropriations for the benefit of such an institution. It held that such appropriations violated the constitutional prohibition in question, even though payment was not made directly to the institution, stating that tuition fees go directly to the institution, "and are its very life blood."
The Supreme Court of Alabama, in Opinion of the Justices (Ala., 1973), 280 So.2d 547, answered questions propounded by the Alabama House of Representatives concerning the constitutionality of a bill which provided for tuition grants to resident students attending private colleges and universities in Alabama. The Justices were of the opinion that the bill violated federal and state constitutional provisions insofar as it provided state funds to be used directly or indirectly for payment of tuition grants to students attending sectarian schools. It is to be noted that the declaration of purpose of the Alabama act, like the act adopted by our Legislature, recited there were a number of accredited independent institutions whose facilities could be used effectively in the public interest by granting financial assistance to citizens of the state who chose to attend such colleges and by paying a portion of the tuition charges at such institution, thereby reducing educative costs to the taxpayers. The Alabama court further stated: "* * * we are of the opinion that the cumulative impact of the relationship between the State and church related institutions which is provided for in H.B. 247, involves 'an excessive entanglement' between the State and religion and would therefore be unconstitutional under the Religion Clauses of the First Amendment to the Federal Constitution, as well as its Alabama counterpart, Article 14, Section 263."
In Hartness v. Patterson (1971), 255 S.C. 503, 179 S.E.2d 907, the South Carolina Supreme Court struck down a legislative enactment making public funds available to provide financial aid to students attending independent institutions of higher learning. The South Carolina act is very similar to our own. It provides tuition grants to students attending independent institutions of higher learning, creates a committee to administer the tuition grants, sets forth eligibility requirements for the students to receive the aid, and makes a tuition grant unavailable to any student enrolled in a course of study leading to a degree in theology, divinity, or religious education. It also sets forth the standards to be met by any participating independent institution of higher learning.
Quoting from the South Carolina case: "Under the terms of the Act, the tuition grant is made available to the student only after he has been accepted by or is registered in a particular eligible institution of his choice. After the tuition grant has been made, it is unlawful for the student to expend the funds for any purpose other than in payment of his tuition at the institution he is authorized to attend under the tuition grant. It is conceded that the tuition grant is not made directly to the school, but is made to the student who is required to pay it to the school selected by him."
Section 3 of L.B. 1171 provides: "A tuition grant may be awarded to any resident of Nebraska who is admitted and in attendance as a full-time resident student at any independent institution and who established financial need." Section 6 of L.B. 1171, so far as material herein, provides: "If the student discontinues attendance before the end of any semester, or equivalent academic term, after receiving payment under the grant, the entire amount of any tuition refund due that student, up to the amount of any payments made under the annual grant, shall be paid by the independent institution to the State of Nebraska."
The holding of the South Carolina court in Harkness, supra, is as follows: "Use of public funds, under statute making such funds available to provide financial aid for students attending independent institutions of higher learning, to provide tuition grants to students attending participating religious institutions constituted 'aid' to such institutions within the meaning of, and prohibited by, article of Constitution prohibiting use of public money, directly or indirectly, to aid institutions of higher learning controlled by sectarian groups."
Miller v. Ayres (1972), 213 Va. 251, 191 S.E.2d 261, involved statutes relating to tuition assistance loans at private institutions for collegiate or graduate education. The statutes provided that satisfactory scholastic achievement would be considered repayment of the loan. The court held the loans constituted gifts, and that since such gifts or grants may be made to students in sectarian institutions, they violate preceding provision of Constitution prohibiting state appropriation to schools and institutions of learning not owned or exclusively controlled by State or some subdivision thereof.
The South Dakota court in Synod of Dakota v. State (1891), 2 S.D. 366, 50 N.W. 632, 14 L.R.A. 418, expressly held that a constitutional prohibition of the appropriation of lands, money, or credit "to aid any sectarian school" applied to any such appropriation whether made as a donation or in payment for services rendered the state by said school, as in the case of payment of tuition for students being trained to teach in the common schools. The South Dakota court took the position that the payment of the plaintiff's university demand for tuition would be for the benefit of or to aid the university, although it was contended that it would be for services rendered to the state or to its students. The court stated that: "This contention, while plausible, is, we think, unsound, and leads to absurd results. If the state can pay the tuition of 25 students, why may it not maintain at the institution all that the institution can accommodate, and thereby support the institution entirely by state funds?"
In Committee for Public Education Religious Liberty v. Nyquist (1973), 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed. 2d 948, the Supreme Court had before it a New York law granting tuition reimbursement and tax benefits to the parents of elementary and secondary private school students. The court stated: "As Mr. Justice Black put it quite simply in Everson: 'No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.' 330 U.S. at 16.
"The controlling question here, then, is whether the fact that the grants are delivered to parents rather than schools is of such significance as to compel a contrary result. * * * Indeed, it is precisely the function of New York's law to provide assistance to private schools, the great majority of which are sectarian. By reimbursing parents for a portion of their tuition bill, the State seeks to relieve their financial burdens sufficiently to assure that they continue to have the option to send their children to religion-oriented schools. And while the other purposes for that aid — to perpetuate a pluralistic educational environment and to protect the fiscal integrity of over-burdened public schools — are certainly unexceptionable, the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions. * * *
"First, it has been suggested that it is of controlling significance that New York's program calls for reimbursement for tuition already paid rather than for direct contributions which are merely routed through the parents to the schools, in advance of or in lieu of payment by the parents. The parent is not a mere conduit, we are told, but is absolutely free to spend the money he receives in any manner he wishes. * * * A similar inquiry governs here: if the grants are offered as an incentive to parents to send their children to sectarian schools by making unrestricted cash payments to them, the Establishment Clause is violated whether or not the actual dollars given eventually find their way into the sectarian institutions. Whether the grant is labeled a reimbursement, a reward or a subsidy, its substantive impact is still the same."
To the same effect is Sloan v. Lemon (1973), 413 U.S. 825, 93 S.Ct. 2982, 37 L.Ed.2d 939, wherein it was said: "The State has singled out a class of its citizens for a special economic benefit. Whether that benefit be viewed as a simple tuition subsidy, as an incentive to parents to send their children to sectarian schools, or as a reward for having done so, at bottom its intended consequences is to preserve and support religion-oriented institutions." See, also, Almond v. Day, 197 Va. 419, 89 S.E.2d 851; Hartness v. Patterson, 255 S.C. 503, 179 S.E.2d 907; Wolman v. Essex, 342 F. Supp. 399, affirmed 409 U.S. 808, 93 S.Ct. 61, 34 L.Ed.2d 69; Kosydar v. Wolman, 353 F. Supp. 744, affirmed 413 U.S. 901, 93 S.Ct. 3062, 37 L.Ed.2d 1021; Public Funds for Public Schools of New Jersey v. Marburger, 358 F. Supp. 29; People ex rel. Klinger v. Howlett (1973), 56 Ill.2d 1, 305 N.E.2d 129.
Although these cases dealt with questions arising under the First Amendment to the Constitution of the United States, they specifically hold that tuition allowances from public funds to parents of students are, in effect, appropriations for, or in aid of, private schools, and as such are impermissible. Direct allowance of such tuition funds to the students as distinguished from their parents is immaterial. The same factors are present. It is a patent attempt to sanction by indirection that which the Constitution forbids.
That aid to private schools was intended by the Legislature is quite apparent from the following language comprising part of the declared purpose in section 1 of the act, to-wit: "The independent institutions of this state have the capacity to handle more students without increasing faculty or facilities and can do so at a reduced cost to this state with the help of tuition grants; * * *." Furthermore, as heretofore noted, declarations made on the floor of the Legislature during consideration of the act make this purpose obvious. Further, unless this was the intention, would the grant have been limited to only students who attend independent institutions in Nebraska? Limiting the grants to students attending independent institutions in Nebraska insures that all these funds will inure to the benefit of institutions not owned or controlled by the state.
Respondent contends that L.B. 1171 is invalid as being in violation of Article III, section 18, of the Constitution of Nebraska, which prohibits the granting to any corporation, association, or individual any special or exclusive privileges, immunity, or franchises whatever and which further provides that in all other cases where a general law can be made applicable, no special law shall be enacted. As we pointed out in United Community Services v. The Omaha Nat. Bank (1956), 162 Neb. 786, 77 N.W.2d 576: "The Legislature may make a reasonable classification of persons, corporations, and property for purposes of legislation concerning them, but the classification must rest upon real differences of situation and circumstances surrounding the members of the class relative to the subject of legislation which render appropriate its enactment.
"The Legislature may legislate in regard to a class of persons, but it cannot take what may be termed a natural class of persons, split that class in two, and then arbitrarily designate the dissevered fractions of the original unit as two classes and enact different rules for the government of each."
There are two areas in which L.B. 1171 violates this constitutional provision: The first is with reference to students who arguably are to benefit from the tuition grants involved in this legislation; the other involves institutions where post high school training may be received. These two propositions as they appear in L.B. 1171, while somewhat related, are nevertheless separate and distinct points.
The students must be resident students of college age; they must attend one of the independent colleges within the state; and they must meet a financial need test, which incidentally is not a poverty or welfare test. The student must be domiciled in Nebraska and admitted to a private college in Nebraska within 5 years of his high school graduation. Years spent in military service, however, will not count against this 5-year limit.
It thus appears the class of students eligible to receive these benefits is somewhat restricted. All students who are admitted to private colleges may not participate. Those students who wait over 5 years before their admission are not eligible for grants in any event. No exception appears for sickness or complete lack of funds to make the basic payment upon tuition. Age alone cannot be claimed to be a factor inasmuch as military service is specifically exempted in computation of the 5-year period. Furthermore, no grant is permissible for students who meet the qualifications otherwise but who wish to attend private schools outside the state. The nature of the classification of the students appears to be primarily for the purpose of aiding the private institutions in the state rather than resident students.
If the purpose is to aid needy students in securing a post high school education, the classification is questionable in another regard. The training in the private schools is limited to the academic field. A student desiring to enter a private institution specializing in a vocational-type training is not eligible. Even if a student otherwise eligible is seeking vocational-type training in one of these authorized institutions, it appears he would not be eligible for the grant unless he is actually enrolled in a course of study which leads to an academic degree. It appears to us the law does not operate equally upon all individuals in the state but singles out a select few to whom a gift of taxpayers' money is to be made.
There is also a question as to the classification of the colleges, even assuming the law is not invalid because of the sectarian nature and private nature of the institutions concerned. Under the statute the school must either be an accredited school as that term is defined in the act or a school in existence at the time of the passage of the act and having a certain number of pupils. A reading of the floor debate indicates clearly that the purpose of the provision concerning a school in existence with at least 200 pupils was to permit John F. Kennedy College at Wahoo to participate in this benefit program. This is a sort of grandfather clause and does not require Kennedy College to become accredited. So long as it operates, it is eligible to participate. However, no other school in the future may so qualify. In fact, while it appears that the class is open insofar as church-related colleges are concerned, the class is really closed in all other respects. In view of the foregoing, we hold the act is in violation of Article III, section 18, Constitution of Nebraska.
Respondent's cross-appeal urges L.B. 1171 violates the Establishment Clause of the First Amendment to the Constitution of the United States as made applicable to the states by the Fourteenth Amendment. The guarantee of the Establishment Clause of the First Amendment is protected against state infringement by the Fourteenth Amendment. Cantwell v. Connecticut (1940), 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352.
In Lemon v. Kurtzman (1971), 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745, the Supreme Court of the United States laid down a three-part test for a statute to pass constitutional muster when considered against the restrictions of the Establishment Clause. They are: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; and third, the statute must not foster an excessive government entanglement with religion.
We have heretofore referred to Committee for Public Education Religious Liberty v. Nyquist (1973), 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948, which covered a tuition grant program for tuition reimbursement for parents of children attending elementary or secondary nonpublic schools. In Sloan v. Lemon (1973), 413 U.S. 825, 93 S.Ct. 2982, 37 L.Ed.2d 939, the Supreme Court held a Pennsylvania legislative enactment providing funds to reimburse parents for a portion of tuition expense incurred in sending their children to nonpublic schools was indistinguishable from Nyquist, and voided the statute.
A stipulation as to certain written policies of the various colleges and expected testimony of the presidents of the various colleges is a matter of record in this case. Of the independent institutions of higher education which resident students may attend to obtain grants, only two are not church related. All the others except two require some courses in religion. Two of them require daily devotions or attendance at campus religious services. In the two which require no religious courses, members of the particular denomination predominate on the controlling board.
The stated purpose of L.B. 1171 is to make tuition grants to students attending institutions of higher, education which are operated privately and not for profit. The purpose of the act is stated in section 1 thereof. It clearly applied only to independent colleges and universities. This includes those colleges and universities which are controlled or operated by religious groups. There is no attempt made in the bill to restrict the use of the tuition funds provided by the state solely to secular subjects. As suggested, all but four of the institutions require students to take some religious courses. It is to be noted that the only limit respecting religion appears in section 17(1) of the act. This section provides that a student pursuing courses leading to a theological or divinity degree shall not be eligible to receive tuition grants. There is no restriction in the act that the proceeds received through these grants be limited to secular subjects, so obviously in some institutions these tuition grants finance sectarian subjects. This alone shows secular and sectarian subjects are so intertwined in and supported by the tuition grants that L.B. 1171 violates the Establishment Clause.
For the reasons given, we affirm the judgment of the District Court holding L.B. 1171 unconstitutional. We specifically find it in violation of Article III, section 18, and Article VII, section 11, of the Constitution of Nebraska. We also find L.B. 1171 unconstitutional under the Establishment Clause of the First Amendment to the Constitution of the United States, which question the trial court did not cover.
AFFIRMED.