*1 7H Co., Insurance Minn. N.W.2d (1960), is cited. It is that Halli- obvious quoted
will and the text Am.Jur.2d
are inconsistent with what Missouri courts Moherstadt, Johnston, Roberts,
have held in Life,
Bankers Rippstein, McNabb and Wice-
carver. We to overrule those cases. decline Lumley that venue
It follows in the Cir not vested cases Sumner Louis. City St.
cuit Court permanent.
Writ
All concur. corporation, UNITED, a
AMERICANS al., Respondents,
et Lang al., Appellants, et
H. ROGERS
Independent Colleges and Universities
Missouri, Intervenor-Appellant.
No. 59410. Missouri,
Supreme Court of
En Banc.
July 1976. Aug. 1976.
Rehearing Denied
713 *2 grants for tuition
Program’ pub- at certain students private colleges, hereby declared lic to be unconstitutional void under provided guarantees rights within *3 Amendment of the United Con- First States I, provided and within Article Sec- stitution III, 38(a), 6 and Article Section tions IX, X, Article Section and Article Section (1945).” of the all Missouri Constitution Higher Coordinating The state Board for Independent Colleges and Education certain defendants, Universities, appeal- and the cause vested in ed. Jurisdiction of V, 3, by this court virtue of Article § state. We constitution this reverse. challenged statutory en- scheme was acted in 1972. Assembly General During year, approxi- the 1975-76 school 10,000 fi- mately college students received nancial assistance while enrolled in 57 dif- ferent in Missouri—26 private approved by and 31 the Coordinat- — ing Board for The lat- Higher Education. designated ter in 173.210is as the admin- § agency implementation of the istrative for program empowered promulgate and is regulations to effectu- reasonable rules and has au- ate the same. The Board the sole “ qualified recipi- thority to . select Danforth, Atty. Gen., John Daniel C. assistance, make ents to receive financial Card, II, Gen., P. Atty. City, Asst. Jefferson quali- such awards financial assistance Walsh, McRoberts, H.R. and Thomas C. Sr. recipients determine manner fied and Cave, McRoberts, Bryan, McPheeters & St. recipient.” payment and method Louis, appellants. for “Purpose 173.200is entitled of sections § general to 173.235”and reads: “The 173.200 Susman, Schermer, Susman, Wilier Prank to the assembly, giving due consideration Rimmel, Louis, respondents. for & St. continuing and of the historical interest Newman, Neale, Freeman, encourag- people B. of the state of Missouriin Flavius Freeman, Wayne Springfield, deserving youths to real- ing qualified & Bradshaw Weil, education, & Eyerman Millsap, aspirations higher for Millsap, L. ize higher amici curiae. Schenberg, finds and declares that education Clayton, an state who desire such residents qualified there- properly and are education MORGAN, Judge. for, security welfare important en- nation, court January 26, trial and conse- On of this state and stat- declaring that: “The judgment important purpose. is an quently tered Revised in Missouri finds declares utory general assembly scheme contained 173.235,popu- Statutes, 173.200 its economic Sections that the state can achieve full potential only every if individual Assistance and social ‘The Financial larly known as need, determining such as those of the opportunity has the to contribute to the full Program American or the College Testing extent capabilities only of his when Service; economic, College Scholarship .” financial to his barriers social and goals removed. educational It is there- qualifications 173.215lists the basic § fore, the policy general assembly and and, “1. An applicant part, provides: the purpose of sections 178.200to 173.235to applicant eligible shall be for initial or re- establish a financial assistance if, newed financial assistance at the enable full-time qualified students to re- application throughout time of his nonreligious ceive educational services in a period during receiving which he is such institution of edu- assistance, (1) he Is a citizen of the United cation of their choice.” States; (2) Is a resident of the state of Missouri, as determined reference to 173.205contains definitions of academic *4 promulgated pursuant standards to section year, approved institution, private approved (3) program]; 173.140 loan Is en- [student public institution, board, coordinating fi- rolled, accepted or for enrollment has been assistance, nancial financial need and full- student in an undergraduate as a fulltime Two, therein, time student. are of immedi- institution; (4) approved private public or special ate and interest: need; (5) financial Establishes that he has “(2) institution’, ‘Approved private a non- any court of an Has never been convicted institution, profit dedicated to education force, the use of offense which involved purposes, (a) located Missouri which: Is property seizure of under the disruption or operated privately under the control of an higher control of institution of educa- any independent directly board and not con- such prevent tion officials or students in trolled or administered by any public agen- or engaging institutions from their duties subdivision; cy political (b) or Provides at studies; (6) and No award pursuing their collegiate least a level course of instruction 173.200 to shall be made under sections for years, leading a minimum of two or enrolled, or any applicant 173.235to who is directly creditable toward an associate or enroll, the award in a who intends to use (c) degree; baccalaureate Meets the stan- study leading degree to a in theol- course of dards for as accreditation determined ogy divinity.” or Colleges the North Association of Central any grant amount of 173.220limits the § Schools; Secondary (d) and Does not dis- (1) applicant’s or fi- award to the least of administrators, hiring criminate in the need, (2) the tuition and nancial one-half faculty and staff or in the admission of mandatory charged fee at the institution race, color, students on the religion, basis (3) sum of Nine Hundred attended or sex, origin compliance or national and is in Dollars. Rights with the Federal Civil Acts of 1964 173.230, recipi- “A part, provides and et seq., 1968 U.S.C.A. 2000a §§ [42 may transfer ent of financial assistance seq.] pursu- et and executive orders issued institu- one or thereto; (e) ant Permits members faculty losing eligibility his tion to another without to select textbooks without influence or * * * .” for assistance source; pressure (6) ‘Finan- by any need’, cial the difference between the finan- parties agreed By stipulation, applicant cial resources to an available manner in which awards are distrib- board, coordinating determined uted, the award is “Payment to-wit: expenses, the applicant’s anticipated includ- check in the amount of made individual tuition, fees, ing mandatory and board and to the student. payable solely the award attending approved private room while the checks Department sends [Board] or education. attending institution of each insti- for all of the students determining coordinating need the board at the financial aid officer tution to the employ nationally shall a formula similar to for distribution to particular institution students, which, speaking, occurs recognized generally mechanisms for comprehensive in aid of religion, or or denomination Each student is notified that his as follows: or teacher minister preacher, any priest, at the cashier’s window check is available such; preference and that no thereof, as necessary identification to present discrimination to nor given shall expected claim the check. The student is church, sect or creed of against any to take care by the institution or faith any form or religion, tuition, expenses such as all educational worship. fees, (where applicable) and board room assem- III, 38(a) general might be owed to the institution at the Article § —The grant public power no bly
time he receives check. If the amount shall have lend or authorize or money property, of the student’s indebtedness to the institu- or credit, any pri- equals lending tion or exceeds the amount corporation, check, association person, the student vate normally endorses calamity, gen- aid in excepting check over to the institution and receives a for the pensions for eral laws receipt having for made such If payment. assistance, for aid blind, age old the amount of the check exceeds the stu- or the children crippled indebtedness, dependent dent’s normally student relief, adjusted com- blind, for direct endorses the check over to the institution for dis- rehabilitation pensation, bonus and receives back cash or the institution’s services the armed members of charged check for the difference between his indebt- fide were bona who United States edness and the amount of the check. If all *5 their serv- during this state residents of tuition, charges of the institution for of other ice, the rehabilitation and for fees, (where applicable) and room and board be may also property persons. Money or sources, paid have been from other the and be States received from the United check is turned over student to be money together redistributed by may pay- used him as he see fit. The desig- purpose any public of this state for obligations ment of a student’s insti- States. by nated the United tution is a matter to be worked out between general as- IX, Article 8—Neither § the student and the institution.” town, town- city, any county, sembly, nor It agreed seems forty fifty- municipal or other district ship, school seven recipients attend now appropri- make an corporation, shall ever have no church affiliation whatever. fund what- any public from pay ation or judgment by entered the trial court any religious ever, in aid anything reflects that predicated upon it was to or purpose, creed, church or sectarian following provisions. constitutional private or any sustain or help support Constitution, United States First Amend- college, seminary, academy, school, (in part): Congress ment make shall no learning institution university, or other respecting law an establishment of reli- creed, church any by controlled gion . whatever; nor denomination sectarian or Missouri Constitution: personal or donation any grant shall I, person Article 6—That can by no be § ever be real estate or property erect, compelled town, support any or attend or city, state, any county, or place system worship, main- reli- any or to for corporation, municipal other minister, tain or support any priest, creed, church, or sectarian gious church, preacher sect, any teacher of whatever.
creed or but if religion; denomination of levied X, may be 3—Taxes Article § any person voluntarily shall make a con- only, purposes for collected tract for held object, such he shall be same class upon the uniform shall be to the performance of the same. limits of the territorial subjects within taxes tax. All I, levying the authority Article 7—That ever money no shall general and collected be direct- levied public treasury, taken from shall be the fis- during church, payable and shall ly indirectly, sect laws aid which the determined that scheme was year property cal or calendar Except provid- “facially” as otherwise pro- is assessed. unconstitutional under the constitution, in this the methods of ed scriptions of both the federal and state con- determining property stitutions, the value of and we shall consider the same in fixed taxation shall be law. that order. task, we we approach express
As
our
for the assistance of excellent
appreciation
Federal.
parties,
submitted
the Attor-
briefs
Any
analyze
need to
the manner which
and Amici
To sustain
ney General
Curiae.
interpreted
parties
many fed
respective positions,
present-
each has
has
un
eral church-state eases
been made
with a com-
every
argument
ed
conceivable
necessary by the recent decision of the
are
prehensive review of what
identified as
Supreme
United
Court
Roemer v.
States
supportive precedents. Within
limita-
-
Maryland,
Board of Public Works of
opinion
length,
of reasonable
an
tions
-,
717
-,
2344,
“A
system
at
that:
are:
96 S.Ct.
parties
part rely,
which the instant
Education,
1,
perva-
felt as
that makes itself
government
Everson v. Board of
330 U.S.
504,
nev-
(1947);
hardly
expected
67
91
711
Board of
sively
S.Ct.
L.Ed.
as ours could
236,
fact,
Allen,
Education v.
392
88 S.Ct.
er
with the church.
paths
U.S.
to cross
1923,
(1968);
impose
The court First cially” 251, is not violative of the Amend- “Paternal- 1. c. that: claring in federal, ism, ment to the United Constitution. as the deriva- States state whether assumption implies, is an tion term State. fatherly quasi of a rela- by government the family, and his involving tion the citizen First, to point apparent- we the one consider regulation of governmental excessive the involving question not a church-state ly
719 Dickmann, Inv. v. generally.” and lie Laret Co. private affairs methods and business (banc 1939). people, upon theory interests of the the that 134 68 S.W.2d ( incapable the people managing are their report v. et al. City also Kansas Liebi See affairs, pernicious own and is its tenden- City No. ed as In re Kansas Ordinance word, citizen, cies. a minimizes the (banc 404 39946), 298 Mo. S.W. government. and maximizes the Our feder- 1923), City, Bowman Kansas upon al and are governments state founded 1950). (Mo. banc principle a wholly antagonistic to such a today is Higher unques- education secular people doctrine. the Our fathers believed a contributing to be fac- tionably considered of these free and states were independent society, tor the toward betterment capable self-government, system —a nothing we in the constitution of this find sovereigns, which the people are the department the prohibiting state creature, government carry their to out declaring encouragement from thereof government their commands. a Such “public purpose.” a under mod- Certainly willingness right founded on the and the concepts ern can not be day such action people affairs, take their to care of own “arbitrary” called or “unreasonable.” State part and an indisposition on their to look to ex inf. Danforth ex rel. Farmers Electric government for everything. citi- Cooperative, Environmental Inc. State zen unit. It is province support his to Improvement Authority, supra. government, government and not the to support him. self-government, Under we by the manner selected Does have advanced in all the elements of a the stated Assembly accomplish General great people rapidly more than nation 38(a)? We purpose do violence to Art. that has earth, upon ever existed The pres that it does. not convinced greater there is need now than ever before legitimate “public purpose” ence a makes in our history adhering to it. Paternal- society people or the of this state direct plant ism is a that should receive no nour- expenditures. Certain beneficiary ishment upon the soil of Missouri.” curiae, recipients-students, as amici submit We doubt that a court in 1976 is free to that “. do come before they . not accept apply the very limited definition that is no desira argue this Court to there placed on “public purpose” in 1898 Act; private inherent ble benefit Switzler case. “Time” and “acquiescence” indeed, peers thousands of they and have made the same of historical interest However, unquestionably benefit only. Whether that change good has been distinguished purpose from is to be benefit or bad is court this to decide or private pre benefit does not and incidental event, comment upon. In any we are not ** public purpose clude transcendant a inclined to drive the Assembly General back private that benefit argued it could be into the century. nineteenth guided “To be citizenry a numbers of creates sufficient solely by had, whether a given activity at grants public public purpose and time, previous some recognized been 10,000 of Missouri’s student-citi monies public purpose would make law static. purpose. may zens itself constitute a compel Such standard would us retain law disregarding argument, Even law, ex appropriate overriding pub that an is clear in Missouri penditure, ceased activities which have will not constitutional lic suffer concern; prevent be of us and would death at the hands incidental regard new adopting public functions throughout cases cited benefit.” Missouri less of how essential to the welfare that such is law this confirm opinion reason of they may become v. Land Clear also State state. See gov can we be changed conditions. Nor Auth., 364 Mo. Redevelopment ance For portion alone the fact that erned *9 974, 44, (banc 1954), 52-53 and benefited, .2d 270 S.W directly will be or public the of Redevelop v. West pub- Associates Side degree than the Annbar greater in a benefited 720 635, (Mo. distinguish between various educational Corp.,
ment
397
653
S.W.2d
banc
1966).
and thereby prohibits adoption
levels
of a
higher
different standard for schools of
ed-
logical
It
is suggested
very
argu-
a
from
to
applied
elementary-
ucation
that
ment that resolution of this state issue dis-
secondary
With
agree.
schools.
this we
case,
poses of the
and that no church-state
Nevertheless,
there does
question
remain a
question
actually
theory
The
involved.
as
or
the
to whether
not
factual situation
being
their
grants
that the
made lose
iden-
presented
comparable
now
found
to that
tity
public
as
funds
the
com-
when
students
Harfst,
cases,
in
and
Berghorn
Paster
mingle
required
the same
other funds
supra. Proponents
the program
submit
education,
e.,
college
“pub-
to obtain
i.
a
distinguish
that
it is not and seek to
However,
purpose”
lic
is then
in
served.
same¡
quote
portion
argument
We
a
view of
breadth
trial
of the
court’s
made,
.
to-wit:
.
Missouri Fi-
ruling
appropriate
we do not
to
consider
Program deals with aid
nancial Assistance
on
suggestion.
act
to needy
seeking
students
education
Second, we return to the so-called reli-
* * *
Program provides
The
assistance
gious aspects of the case.
parents
longer
to
whose
no
adults
legal
them with an
obligation
provide
to
Challengers
emphasize that
herein
education, rather
to immature children
than
Missouri,
the constitution of
construed
parents
on their
fully dependent
who are
court,
is more “restrictive”
than
financial,
spiritual guid-
educational
First
Amendment
the United States Con
* *
*
language
support
The
ance and
stitution
expenditures
in prohibiting
pub-.
explicit
Act is clear and
lie funds
tending
in a manner
an
erode
designed
imple-
Program is
that
absolute separation of church and state.
students,
not
for the
benefit
mented
al.,
et
364
Luetkemeyer et al. v. Kaufmann
institutions,
are
and that the awards
F.Supp.
(W.D.Mo.1973), affirmed, 419
376
students,
to the
not
.
888,
167,
(1974)
U.S.
95
7 n furnishing dren to tution of to its schools bear burden of students their institutions, supporting such as well as the educational opportunities always is far public schools, greater the additional burden is self- than the amount of the tuition re essence, imposed. That such a sacrifice argument presents has been ceived.” In by many through years suggestion so makes the practical upon the en individuals, such, it self-evident that do rollment of a student the selected institu tion, act and live with a sectarian private, be it must find addi objective area of (over education—an which the tional funds and above the tuition or Missouri, people speaking fee), through mandatory and that it is at least de constitution, protected fully but also whether or not encouraging batable the cre have declared to one personal be obligations ation of such additional is con individual.” stitutionally proscribed for the reason it is in “aid” of an institution. Reference is contrast, the state not pro does Louis, Kintzele v. City made to St. vide a free college education and we believe (Mo. 1961),involving banc sale that attendance at other than institu Louis Land Clearance by land St. tions at that level does not have the same Authority to Redevelopment St. Louis Uni religious implications or significance as was this court versity, wherein found in the Paster case. The constitution “exchange the view the sale was an al restriction is only that the institution not “ and thus not considerations” aid to a reli be . by any religious . controlled gious corporation. creed, church or sectarian demonimation part In answer to the second of the feder- .” statutory provisions and the (heretofore reserved), al test we are con- question appear to dictate as much. 173.- § statutory program vinced that does 205(2)(a)requires “approved” that an school primary have a effect other than the must ad- “independent Thus, have an board.” religion. vancement of those statutorily qualified schools would not subjected prohibited that “control” Furthermore, we can not with IX, 8, Article of the Missouri Constitution. statutory pro confidence declare Furthermore, qualifications ap- include gram “clearly undoubtedly contra proval by accrediting groups which condi- (State venes” the Constitution of Missouri approval tion on academic freedom. 173.- McQueen, ex rel. Eagleton supra); that it 205(2)(c). “plainly palpably a violation of fun
It is argued, additionally, by
(Borden
those de
Compa
damental law” of this state
fending
program
Thomason,
that tuition
ny
supra);
unques
and fee
nor that it
payments made by
repre
a student do not
afoul of some constitution
tionably “run[s]
grants
sent
“help
(State
“in aid of” or
ex
Farmers’
support
prohibition”
al
rel.
Elec
or sustain” an institution.
It is submitted
Environmen
Cooperative,
tric
Inc. v. State
payments:
that such
Authority, supra).
“.
. were not
tal Improvement
Such
gifts
true,
or donations
recog
students to the
should be
being
institutions,
were
quid pro quo
embodying
people
but
in nized as
the will of the
return for
constitutionally objectionable.
which the institutions were con
and not
Ju
tractually required to make available the
dicial deference is not indicative of the
opportunities
duty
contrary
for the students to obtain a
avoidance of a
but to the
* n *
college education
No institution
the performance
apprecia
thereof with an
received,
made a ‘profit’
judicial
leg
on the tuition fees
tion that
interference with the
whether paid
part by
recipient
of an
process
islative
should occur
when
award from the Missouri program,
legally compel
from there is an unavoidable and
some
program,
Federal
ling
duty
student
reason to do so.
is our
“[I]t
out of his own pocket.
qualified
validity
All
institu
in favor of the
resolve all doubts
tions are not-for-profit organizations, and
ex rel.
act
.” State
(Mo.
record
Godfrey,
shows that the cost to each insti
722 prayer Adminis- so, presented. did on the 1975). doing we take act
banc solace will the school of the Act the Board be parochial the fact that cases with tration changing court con- past continuing process light this has dealt the in- year. types different new school completely approaching volved of educa- ditions and an colleges challenges the prohibit tional entities than and univer- here will Nothing done in an suggested by implemented sities herein involved. As that is being the Act “Institutions of proponents: educa- manner. unconstitutional freedom, able to academic tion are boast of judgment is reversed. objective independence, institutional in- struction, indoctrination, lack of faculty au- FINCH, JJ., concur. HOLMAN mature and a tonomy, diversity students BARDGETT, J., separate con- concurs in religious background faculty stu- opinion filed. curring dents.” Challengers of have not con- SEILER, J.,C. and HENLEY and DON- that the embod- finding tended NELLY, JJ., separate dissenting dissent in fraud, in 173.200 induced collu- ied was opinions filed. faith, we should sion or bad but comment BARDGETT, Judge (concurring). approval the subtle that here suggestion on Seiler, J., In view of the dissent1 of C. I open gates will to further efforts my briefly deem it advisable to state views “wall” breach constitutional between major portion on the of that dissent. Although finding the state and church. is it is not perplexing, the “wall” four weeks this court ago up Just about shy courts to so from the to do far same as constitutionality held of the Missouri a disservice to those whose interests fall on Disclosure Law in Finance and Campaign or the We have this one side other. decided a l. Elections et v. Missouri Chamberlin long its case on merits under established al., (59505 6/21/76). et Mo.banc Commission will be rules construction and court, from quoting this State In that case when questions available and if further v. Highway Paul ex Commission rel. State arise. 419, 1963), (Mo. banc al., 422 et 368 S.W.2d held: Lastly, procedural prob there is a statutory con a cardinal rule of “It is prayer plaintiffs’ petition lem. fairly is sus that where a statute struction sought only a in finding that statutes harmony ceptible construction of a unconstitutional, volved were “facially” given it con must be Constitution judgment of the trial court is limited. so and, the stat unless struction the courts However, much record of the before law, organic clearly repugnant ute is arguments most court and of the revolve upheld. City constitutionality be its must interrogatories, stipula answers around of Mis v. Industrial Commission Joplin tions, corporate catalogs and school by-laws 687,692[6]; souri, Mo., Brown v. 329 S.W.2d presumably individual institutions of the 946, 160, 167[8]; Morris, 290 which, 365 Mo. S.W.2d might this court determine if Metropolitan inf. Dalton v. St. State on meet “qualifi of the schools do not any, 1, Dist., 275 S.W.2d Louis Sewer set out statute. We do not cations” in the 225, McKittrick v. ex inf. 234[23]; State appellate court appropriate think it 406, Co., Mo. 80 instance; Colony Ins. 336 American although to do so in the first 876, ex rel. 883[5]; Bar State actually is at 17 of the attack directed 882 - 124, Mo. 235 S.W. just May, rett 290 arguably 4. Nor v. 51 called for because trial court remand 126[3]. Jackson, dissenting opinion of commenting quotation taken from J., on the
1. I refrain from Seiler, J., and is not appearing the law of that case and is not C. dissent Supreme Education, representative of the States 67 United 330 U.S. Everson Board of S.Ct. (1946), disposition of matter. Court’s because it L.Ed. 173.200) (sec. the act section of “purpose” ordinarily pass on consti- will not “Courts of the act that provisions other presented where the case questions tutional legislature of the doing so. was not the intent decided without may properly religious pur- provide money Life Ins. for sectarian General McIntosh Connecticut City of Co.,Mo., 412[2]; poses. St. 366 S.W.2d Roller, Mo., 363 S.W.2d
Joseph v. instant statute Such a construction *12 Julian, 313, 282 612[6]; Rider v. with the rules of by comports this court 484, S.W.2d 497[23].” applied in articulated construction Chamberlin, City of Kirkwood v. supra, two subsections said that the The court with Allen, would be consistent fairly supra, were sus- in Chamberlin under attack en- legislative to construe duty that will obviate this court’s of a construction ceptible their constitution- uphold the Four- as to to reach and decide actments so any need rather than to strike (equal protec- ality possible when question Amendment teenth alleged an the trial court. The court down a act because of tion) by decided subsections, of the the two which omission when the constitutions then construed conflict, fill in that al- in so as to cause the United and Missouri facially were States perimeter to ambiguous conflicting leged provide subsections omission and constitutionally and therefore constitution- law can applied equally within which the doing court ally. brought operate. In so within the constitutional re-
subsections coordinating board has Under the act the quirement. regulations so obligation promulgate to for legislature The is deemed to be aware of as to insure that the funds are used by the imposed religious purposes conformity the inhibitions constitution sectarian statutory language if is sus- provisions therefore with the of the constitutions constructions, one constitu- of Missouri. to two the United and the State ceptible States unconstitutional, the other it tional and foregoing The is set forth because of the construed in a manner consistent should be J., SEILER, opinion of C. al- dissenting provisions constitution. with majority though quite it is clear under Allen, v. 399 30 of Kirkwood S.W.2d City MORGAN,J., that the coordinat- opinion of (Mo. 1966); “Abby Dodge” The Vessel banc obligation has the to administer ing board States, 166, 175, 223 32 v. U.S. S.Ct. United a constitutional manner and act (1912). 310, 390 56 L.Ed. necessary to steps therefore to such take not be used for sectar- insure that funds provision instant case there is no In the religious purposes. ian attack which the statute under directs the use a school of the award authorizes SEILER, (dissenting). Chief Justice purposes. To religious for sectarian money appears proscrip- that the contrary, ways: has it both it majority opinion Ill, 38(a), such funds for a use of of Art. against the finds no violation Sec. tion leading degree to a of theol- study granting public money which course of forbids clearly legisla- private saying evidences a divinity person, ogy or purpose and hence the program not be used for has a money tive intent are the direct beneficiar- people The coordi- of the state purposes. sectarian It finds no viola- expenditures. is the ies of the education nating board IX, prohibits which use charged imple- with tion of Art. Sec. agency administrative any religion in aid of funds established mentation of the help or to sustain purpose sectarian and is vested sections 173.200-173.235 by any church or sectari- rules controlled reasonable power “promulgate denomination, the basis that the aid an on of its func- regulations for the exercise student, I do not see not the school. purposes to the and the effectuation tions funds to granting 173.- how the $900 to 173.235.” Sec. of sections 173.200 grant a treated as from the can be It is clear student Supp.1975. RSMo 724 for, as legislature unprovided can leave this being as to avoid
people of the state so at the here. person attempted and also has been grant private grant a direct same be treated as Maryland, was done This is not what being appropria- student so as to avoid grants its statute creed, church or any religious tion in aid of in Roemer upheld which was colleges private college. of a sectarian - Maryland, Works Board of Public addition, violates -, In I believe the statute L.Ed.2d 96 S.Ct. U.S. call- provisions the Missouri constitutional on which the June 1976 and decided of church and ing separation for strict heavy reliance. places majority opinion state, explicit more and restric- statute, expressly pro- it was Maryland tive the First Amendment to than those of moneys payable vided that “None of Tussey, the federal constitution. Paster utilized shall be under this substitute 1974). The statu- (Mo. banc purposes.” for sectarian *13 no limitation that tory scheme contains Education, Higher Maryland Council grant student uses his to college where the counterpart of our Coordinat- which is the not sectarian. There is pay the tuition be Education, Higher requires ing Board for nothing public which insures that the funds put not the funds eligible that used, which are made available will not be must use. The institution any sectarian in aid of a directly indirectly, either or that the funds will declare affirmatively a sec- religion denomination of or in aid of must purposes and not be used for sectarian happens if that to be purpose tarian that uses specific set forth the nonsectarian the student selects. type college year end of the planned. are At the present statute requirements All the nonsectarian confirm institution must public funds yet can be met and in keep the funds use of the funds. It must pur- used for the forbidden available can be for verifi- must retain special account and poses. sufficient documenta- cation the Council not used were that the funds verify tion to forbids use of Our constitution statute In the purposes. for sectarian purpose or to any funds in aid of sectarian held in the Roem- Supreme Court which the support college or controlled any sustain constitu- federal violate the did not er case whatever, any sectarian denomination Art. carefully, legislature tion, Maryland IX, shall, public money directly 8. No Sec. that state to it saw meticulously, even sect, I, any or to aid Art. indirectly, put pur- for sectarian used not be funds would policy Sec. 7. “. . The constitutional absence of glaring ais poses. There sepa of our has decreed the absolute State statute and Missouri such restrictions state, gov not in ration of church and on its face: unconstitutional why that it is matters, but in educational ones ernmental drawn, the use permits presently as coming from tax money, well. Public either purposes, sectarian denomination, not be funds payers may of every indirectly. or any religious directly used sect help for the Harfst education or otherwise. is to enable its The statute states Hoegen et a l. v. et al. non- to receive students qualified full-time 1942). (banc in a services religious educational higher education private institution legislature I do believe the can consti- choice, But a sectarian 173.200. tutionally adopt authorizing a statute Sec. provide nonreli- does institution can and granting private persons funds to services, courses such as purposes gious school educational to use for tuition or other mathematics, geogra- physics, languages, incorporating at the same time without It does not music, the like. history and safeguards against phy, the funds the statute non- receives a student used, support follow that because being directly indirectly, the col- services educational I do not believe a sectarian institution. long the statute so part not offend this lege where he receives them is not a sectari- receiving go aid student an institution. study lead- college not take a course of did requires The statute also to be con- ing degree theology. institution”, “approved sidered an provides ap- that an The statute also college, among things, other must be the standards proved institution must meet operated “under indepen- the control of an as set the North Cen- for accreditation dent 173.205(2)(a). board”. But this Sec. Colleges Secondary tral Association of does not mean that the is not sectar- Schools, operate compliance that it must ian. It have a might fiercely independent Act of 1964 and not Rights with the Civil board which nevertheless is determined to students, faculty, staff discriminate as to operate does a sectarian institution. race, color, the basis of administration on bar, Baptist College the case at Southwest origin, and must religion, sex or national College examples William Jewell permit faculty members to select textbooks colleges whose boards of trustees have firm pressure without influence or independent convictions that their col- (f). 173.205(3)(d), (e), and source. Sec. leges are and will continue to be sectarian. is free None of these mean that the school institutions, These two on their own initia- from sectarianism. It could be in full com- tive, writing addressed communications in pliance foregoing requirements with the court, making the trial it known that it teachings, char- and still be sectarian in its was incorrect to refer to them as nonsecta- acter, operation. atmosphere, and rian. Both sides in this case have addressed *14 in undertaking to set forth Without portions of their briefs to these declara- examples of sec- lengthy specific detail the tions. colleges Both quite plain it opera- in their present tarianism which are that they have a mission of Christian educa- learning, the higher tion as institutions of tion in American education—that goes same for fifteen others of the the Christian commitment is their dominant us, which have an eight of colleges before characteristic. The boards of these two col- relationship with various close admittedly leges trustees, each consist twenty-four of and seven Protestant denominations selected the Baptist Convention. There the church. Catholic is no doubt that these indepen- boards are dent, that if this is says in majority opinion the sense of The voting their own con- is chal- at it true, way get victions and then being not subordinate or sub- being is carried out lenging that the statute ject to the control of others in operation fashion; that this is in an unconstitutional of college, but equally it is clear that one and not statutory question “purely a they are operate determined to a sectarian is- of constitutional involving resolution institution with a commitment to follow the that we argument assumes But this sues.” Christian doctrine as seen the Baptists. which forbids use of have a statute take, It may not but in colleges, these two purposes, directly funds for sectarian public are they leaving not pick up student “to However, out, pointed we indirectly. or religion by chance”. nothing There is say well very not. The Board could do this, wrong course, about but it cannot use nothing prohibiting in the statute finds supported by public or aided funds under part it is no purposes and that for sectarian constitution, our yet so far as the stat- inquiries of duty any to make such of its ute is concerned these institutions eligi- are or the student. college approval. ble for sum, in guides the tests or contained In prohibits grant statute to a stu- meet the real issue. the statute do not dent in a study who is enrolled course of leading degree theology divinity. to a or it is not even my opinion, in Finally, 173.215.1(6). This, however, provides grant Sec. a to a student is giving arguable being helped college. no assurance that college aid to not form going student is to use question, is not It Beyond sectarian. could be sectarian and going not while to and olic schools but grant help college expenses, his pay schools, and firemen coming from other This, effect, is what including tuition. or Catholic a blaze in extinguish shall part Tuition is says expected. the statute put shall not out buildings school but private college the lifeblood pri- schools blaze in Protestant Church tuition anything helps pay the student That is operated profit? vate schools extent and frees helps college to that the case we have before analogy the true pur- use for other money for the plain that pretty I should think it us and us, the student is poses. In the case before valid.” would not be such a scheme grant through the conduit of merely is transmitted to the whom the state aid church is The sidewalk front school. extinguished, the fire kept repair, answered, not police protection the call for indi- opinion recognizes this majority a form aid to the doing because so is school, but quotes rect aid effect church, in each doing but because so is being about its from the Roemer decision protection such part instance a protected by to be permissible for a church community as a whole. It does for the police departments fire or to have arguing that justification for constitute But, repair. kept its sidewalk by way schools indirect aid to sectarian submitted, respectfully argument by needy funds to students grant analogy present does not fit the case. In made constitutional. thereby prohibi- the first constitutional place, the against mingling tions of church and state are un- 173.200-235 opinion, my Secs. violating contained in the Missouri Art. constitution their face on constitutional stronger IX, much than contained in the those 8 of Art. Sec. I, 6 and 7 and Sections Amendment, held, Constitution, respect- First as we have often and I therefore judgment Paster Tussey, supra. Our constitution I affirm fully dissent. would aid, ”, prohibits “directly either or indirectly of the trial court.
I,Art. (emphasis added). Sec. 7 There is no HENLEY, (dissenting). Judge provision such First Amendment. approves opinion principal Because the *15 Second, as Mr. Justice Jackson wrote in young money peo- to assist appropriation disposing argument of a similar in Everson education, a wor- a ple acquiring Education, 1, 25-26, v. Board of 330 U.S. us, to all of strong appeal thy purpose 504, 516, S.Ct. 711: “. .A L.Ed. than to dissent to concur it would be easier policeman Catholic, protects a of course— by the the line drawn thereby hold Catholic; but not a because he is is in their constitution. people because he is a man and a member of our society. III, The protects fireman Constitution 38(a) Church Article Section school —but not because it a Missouri, Church provides: school; it is because it is property, part of have no assembly shall general “The the assets of society. our Neither the fire- property, money grant public to power man nor the policeman has to ask he before lending or authorize or lend renders aid ‘Is this man or building identi- association credit, private person, any to fied with the Catholic Church?’ aid excepting corporation, To consider the converse of the Court’s laws calamity, general reasoning fallacy. will best disclose its blind, age assist- for old for the pensions parallel police That there is no between crippled ance, dependent for aid to relief, protection plan blind, fire and this of reimburse- for direct children or the apparent incongruity ment is from the bonus or rehabili- adjusted compensation, applied this Act if members of police discharged limitation of tation for who and fire service. Could we sustain an Act of the United States armed services this state shall residents of police protect pupils that said the on were bona fide service, for the rehabili- way during to or from schools and Cath- ” * * * (Em- opinion quotes provi- persons. principal tation of other added.) I, phasis supra. They are not sions of Art. § opin- principal thereafter mentioned. The constitution, Despite this command proscrip- aid ignores the indirect ion thus grant a principal opinion has I, applies to supra, and tion in Art. § public money private persons, needy position restrictive federal Missouri the less college students. It does so on the basis as articu- of church and state separation on money appropriated that the is for the use lated Roemer. acquiring of these edu- persons cation, gen- said to be a scheme my opinion, In assembly eral in its discre- may, unconstitutional because it autho- facially tion, “public” purpose. determine to be I, supra. rizes violations of Art. § have, people that the answer to this is respectfully I dissent. 38(a), clause in “exception” deter- § specifically mined for themselves and enu- purposes
merated and limited the for which
the general assembly may grant public persons.
money private enough principal opinion
It is not for the needy
to declare that aid to students is a
“public purpose.” my opinion, grant public money private persons may NICHOLS, Plaintiff-Respondent, Elmer B. “purposes” for the enumerated exception 38(a). grant clause of A persons may not be made for NICHOLS, Minnie M. “purpose” other than those enumerated in Defendant-Appellant. exception 38(a). clause of § No. 27564. stated, For the reasons I respectfully dis- sent. Appeals, Missouri Court of District. City Kansas DONNELLY, Judge (dissenting). June 1976. I,
Article Section 7 of the Constitution of Rehearing and/or Transfer Motion for Missouri reads as follows: July Denied 1976. “That no money shall ever be taken from the treasury, directly or indi-
rectly, church, in aid of any sect or de- religion,
nomination of or in aid of
priest, preacher, minister or teacher such;
thereof, as preference no given
shall be to nor any discrimination church, against any sect or creed
religion, form of faith or mine.)
worship.” (Emphasis
I think it must be conceded that challenged out under the statu-
money paid scheme will result in aid to some de-
tory religion.
nominations of
mode of of such to stu- payment money
dents, directly rather than to institutions is itself a classic purposes, sectarian
example of indirect aid to denominations
religion.