Mallory v. Barrera

33; Yet, Barron, Mo., any disadvantage mission v. 400 S.W.2d result Hunt, Missouri Public Service Co. v. Mo. use of such evidence is more 27; App., McKinney Lynch, compensated 274 S.W.2d v. by than the advantage of a Mo.App., hardly enlightened 45 S.W.2d 874. We need more basis for its ultimate So, to the effect that a wit cite authorities determination of value. while the supposed ness not narrate facts told is to may tendency admit evidence which another, such value, him when evidence is light sheds is it prove the fact thus offered to asserted. left to the discretion of the trial judge “to bounds”, Evidence 193. How within keep 31A C.J.S. it State §§ ex rel. ever, expert testifying may Barron, Highway an values Commission v. State opinions upon part 37[8]; base his his investi l. c. ex 400 S.W.2d State rel. State inquiries concerning his gation Commission Highway v. Bloomfield Trac for, context, Inc., Sales, in that things 24[1, sales l. c. 2], tor S.W.2d general qualifica into his case merely enter exercise false issues are not experience, tions and and constitute back and that suggested jury not other Barron, ground supra; Armory material. wise misled. In re State Site in Kan Mo., Highway City, ex rel. State Commission v. sas S.W.2d 472[17]. Sales, Inc., Bloomfield Tractor Mo.App., record us before reflects that 20, 23 et In seq. determining 381 S.W.2d brought sales” “the to the at collateral sale is one of compa whether a jury tention of the were properly identified admissible, property and thus rable the background as one of upon factors City has a wide court discretion. trial expert which the witness had based his Mo., Vasquez, St. Louis S.W.2d thus were in conformity done 839; ex Highway rel. Com State existing law. Koberna, Mo., 396 mission v. S.W.2d 654. judgment affirmed. case it is said that unless the In the latter are such make differences as to the evi SEILER, J.,C. and BARDGETT and law, as a matter of dence irrelevant JJ., FINCH, concur. dissimilarity go weight should DONNELLY, JJ., HENLEY concur rather than to its admissibil the evidence in result. 662, leaving loc. cit. ity, S.W.2d developed to be further on distinctions HOLMAN, J., dissents. of compara Evidence

cross-examination. must be of made when the

ble sales sales willing obliged sell, but not

seller is willing the buyer pur where compelled is not to do so.

chase but upon

The rationale admission predicated spelled such evidence is al., L. et Arthur MALLORY ex rel. State recently Highway out Plaintiffs-Respondents, Carlson, (Mo. 463 S.W.2d 74 Commission App.1970), page at as follows: al., Anna et BARRERA testimony given recognize We Defendants-Appellants. expert explaining the basis of his No. bearing of those factors of value or relevant, value, logically when tends even Missouri, Court Supreme collateral considerations. It suggest En Banc. ingenuous hope that jury be an Dec. always hearsay understand will expert only testified to mat reaching him in his considered

ters proof independent for it.

opinion, and Sullivan, Thomas M. City, Kansas Louis Defeo, Jr.,

C. Jefferson City, for defend- ants-appellants. D.

Harry Dingman, City, Kansas plaintiffs-respondents. Sullivan,

G. Dennis Kansas City, ami- cus curiae.

HENLEY, Judge. a declaratory This is judgment action brought Commissioner of Education (State Commissioner) of Missouri and the (State Missouri State Board of Education Board) (the plaintiffs) against Anna Barr- era, (defendants), parents et al. of students attending elementary secondary parochi- Missouri, City, al schools Kansas seeking questions: resolution these two paid 1. Whether funds to the State of the United States under the Title I of the Elementary and Secondary (herein- Education Act of 1965 after Act I)1 ESEA are subject to spending proscrip- tions of the laws of Missouri. prohibits, 2. Whether Missouri law per- requires mits or personnel with Title I funds to teaching private services to school children (sectarian nonsectarian) during regular school hours. do

Plaintiffs not bring against this action the defendants as representa- members and 241a, seq. 1. 20 U.S.C. et class; designed con- The Act administered of all of parties tive disavows and state education officials. petition explicitly local trary, plaintiffs’ action, set up class administrative structure making this a plan binding upon places primary responsibility for which would be Act result of out a Title I parties. ning, designing carrying than the named anyone other upon agency. local education program seeking relief in the In counterclaim de proposed program planned and hold that Title the court should event agency by the local is then submitted signed spend- agency4 educational the state its Missouri, of the laws ing proscriptions agency If approval. approved, court prayed that defendants proposal to the Federal forwards then judgment: approval. pro for his If the Commissioner part Declare no I funds him, approved by the Federal Com posal may be to provide * n * used “pay is authorized to missioner or materials or other equipment educational * ** the amount which it [the] attending or benefits for children agencies the local educational of that and n * nonpublic schools. * eligible are to receive under those under Enjoin plaintiffs, and 2. U.S.C., 20 [approved proposals].” control, in Title participating from their 241g(a)(l). agency The educational § assur- projects providing and from ESEA required to distribute these funds to its required by the ESEA to the U.S. ances agencies. U.S.C., educational local 20 (hereinafter of Education Commissioner 241g(a)(2). ap In order to receive state § Commissioner). Federal of proval, proposal agency the local designed against provide, must be Judgment plaintiffs among other was for requirements, eligible claim and on that plaintiffs’ children defendants enrolled private the defendants’ counterclaim. Defendants schools have the opportunity to I programs We affirm. Title appealed. participate comparable provided public like children in program I is a federal Title the Act of U.S.C., 241e(a)(2); 20 area. § schools local authorizing financial aid “to educa- CFR, 45 116.19. ar- agencies2 serving tional [of states] with concentrations of children from This case “spinoff” eas be said to be a agen- Barrera, Wheeler families” enable those 417 low-income 94 U.S. “expand improve their educa- L.Ed.2d S.Ct. 159 cies another * * * programs “apparently various means round endless legal tional bat I meeting spoken over Title particularly contribute tle” of in the first Wheeler, special of education- of Barrera v. educational needs sentence 531 F.2d attending (8th 1976)5 deprived involving children” elementa- ally 402 Cir. these same schools, public on secondary both one side defendants and the ry State Com those areas.3 missioner private, State Board on the other. * * agency” elementary secondary in 20 2.“Local educational is defined or school U.S.C., 244(6)(B), term as follows: “The CFR, 116.1(4) (1973). See also 45 public agency’ means a board ‘local educational authority legally public or other education quotations U.S.C., 241a, 3. The from 20 within a State for either adminis- constituted declaring policy of the United States. of, perform a or direction or trative control for, elementary public or sec- function service agency A educational is defined in 20 city, county, township, ondary in a 244(7), agency to mean “the U.S.C. officer or district, political or subdivision school other responsible primarily supervision for the State State, such combination of school districts elementary secondary public schools.” recognized in a State as as are or counties elementary agency for its administrative Wheeler, Barrera v. 5. See also: 441 F.2d secondary Such term includes schools. 1971); Wheeler, (8th Barrera having Cir. agency F.2d ad- institution other 1973). (8th of a Cir. control and direction ministrative complaint, in Title requires, Defendants’ manifest not that primary pre that law be conflict, rather, but, round of is and has been empted, each that it be accommodat plaintiffs failed and have refused ed the use of services not proscribed plans proposals would em approve under The question state law. whether teachers, paid the use of with Title I ploy prohibits Missouri law the use of premises during school on-the-premises private funds for in school hours; plaintiffs have regular is still unresolved.” struction at U.S. thereby arbitrarily illegally deprived 416-419, at 94 S.Ct. parochial school children of these de Barrera, court noted Wheeler v. eligible nonpublic fendants supra, the decision this court in Special of services to those af Wheeler, (banc, District S.W.2d 60 eligible forded children. 1966) (one of plaintiffs the authorities have position of the State Commissioner upon in support position), relied their but and State Board is and has been that observed that case did fed- involve Missouri Constitution statutes and the eral In Special District, financial aid. First Amendment of United States Con- held, alia, inter “[t]he approval stitution forbid their of any pro- school funds for education of pupils posed program would autho- parochial schools is for the publicly-funded the use of teaching rize maintaining free schools” within personnel nonpublic meaning IX, 5, of Mo.Const. Art. and § schools, and I did require that Title not 166.011, McVey RSMo 1969. See also: v. approval. Hawkins, 44, (Mo. 364 Mo. 258 S.W.2d 927 1953). banc Addressing itself to the 1973 decision of appeals Wheeler, of in Barrera v. court the The question whether the use public of Court of the supra, Supreme the United parochial aid of school students Barrera, v. supra: said in Wheeler States I, 7, and schools violated Mo.Const. Art. outset, “At the believe that the the Establishment Clause of the we Court First Appeals holding presented not Special of erred in that federal law Amendment was governed question Although whether on-the- District. First Amendment (417 question presented instruction premises per school Wheeler 415, 2274) law. at not missible under Missouri Whatever the U.S. 94 S.Ct. the court did However, reach expression be if there no of it. less a case decide than intent, later, congressional year that court did decide Title evinces a similar specific question state First Amendment in Meek Pit clear intention that constitutional v. 349, tenger, not 421 95 spending proscriptions pre-empted as U.S. S.Ct. 217 a case accepting involving of funds. The L.Ed.2d a Penn a condition federal statute, issue, the stated namely, sylvania whether federal key aid of which are public analogous state fund for certain to any ‘donated to I, meaning of Title ESEA. Barrera v. within of the Wheel purposes,’ school er, 9, 5, at Constitution, supra, 531 F.2d 405. The court purely held Pennsylvania provi not federal law. in Meek that law’s By of state supplying publicly-employed sions characterizing involving as one problem to instruction provide prem teachers ‘federal’ and not ‘state’ then law of sectarian schools violated the consti concluding governs, ises feel, prohibition against “respect in effect tutional laws Appeals, Court of nullified religion,” of ing an establishment because policy accommodating Act’s of apparent political en “potential is that the ‘federal The correct rule law. tanglement, with the together the effect that state administra under Title I is to law’ entanglement tive which would be neces not If it is deter should be disturbed. law sary auxiliary mined, petitioners’ per ensure that services ultimately, posi law, strictly sonnel remain exposition is a of Missouri neutral and nonideo- correct public pur ed to state fund for functioning in church-related [a] when logical * * 367-372, laws meaning within the poses” *.” 421 U.S. at schools Missouri; (4) any part v. the use of also: Lemon Kurtz 1767. See at S.Ct. 602, 2105, the state to 29 L.Ed.2d teach 91 S.Ct. man, U.S. ing elementary secondary (1971). children on the of parochial education, the specifically it relates As would constitute the schools state, expressed as policy (a) in aid aof denomination of reli statutes, is: that free constitution 7; proscribed by (b) gion and main- shall be established help support or sustain a school con within persons state for all tained pro a sectarian denomination trolled funds shall ages;6 no certain by Mo.Const. Art. 8. Harfst scribed con- support aid or used 808, Hoegen, 349 Mo. 163 S.W.2d v. denomination;7 that by a sectarian trolled (Mo.banc [8, 10] 1942); Berghorn 613-614 super- shall be under public schools Reorganized School District No. 364 Mo. State Board.8 of the vision (1953); 260 S.W.2d 582-583 Paster responsibility Board, charged with (Mo.banc Tussey, 1974). S.W.2d 97 policies the educational out carrying permit require the use state,9 suggest, Defendants and ask this pro- any purpose funds for any public hold, that a agreement trust meth court by state law. scribed od, theory of which they say has been in Board of Buildings Public approved obviously “public” funds are Crowe, (Mo.banc 1962) 363 S.W.2d as Speaking of these funds “feder- funds. discussed, cases therein could be utilized distinguish them from “state” funds al” fund, special separate create a trust alter their character does apart treasury, from the state “fed- the fact that this is funds. Nor does Treasurer or other officers as it any aid” make the less funds. eral trustee, receive, hold, disburse view, We are inclined to the for in accord with the account hold, (1) when these to that funds are thereby avoid the fiscal Act and scheme state, U.S.C., (20 required by the Act the as Constitution, by espe the Missouri created they 241g(a)(1)), must be in the § cially spending proscriptions. treasury;10 (2) that deposit state when so recognize approve holdings We in ed, these funds are held in by the state Crowe, supra, therein, cases discussed purposes specified for the uses and in trust based, are, they particular on their facts. I program approved by the Title the Feder However, involve, they we note that did not Commissioner, may appropriated al be does, the use public case funds for as this for and used such of by proscribed the state constitu- purposes proscribed by as are not the laws purposes tion. state; (3) part that that of these of this too, note, a We project not, fact, in Title which has been that we are in justiciable for with by Federal Commissioner a as to approved presented issue agreement a trust public in a free school donat whether and fund may use ** * IX, 1(a). IV, 15, providing, part: § 6. Mo.Const. Art. Art. § in “All moneys by any received the state from source IX, 7. Art. Mo.Const. 8. § go promptly whatsoever shall into the interest, treasury, and all income and returns IX, 161.092(2), 2(a); Art. § § 8. Mo.Const. * * * belong to therefrom shall the state .” RSMo 1969. IX, provides, part: Art. which § See also: * * * moneys donated to “[A]ll 8. 9. See footnote * ** purposes fund for shall * ** III, provides, part: Art. treasury § 10. Mo.Const. paid into the state See be * ** by the state received “All 166.011, RSMo also: * ** go treasury See also: shall into receive, be public purpose utilized hold and disburse a designated by the United agreement States, Title I because such an but it does require authorize or particular purposes, and all for those purpose their use a so designated which present it foreign well prohibited by provisions issues other of our con- stitution, this case. such pleadings Defendants’ as Art. IX, “suggestion” that a fund “could be” present live, does utilized us with a As to defendants’ counterclaim, - agreement trust contested which we (1) is evidence there that “Title I funds are decision; apply a they present only could [by provide used certain text state] they with which ask us to deal in library reading books books and materi and, with ” accomplished, the abstract * * nonpublic sent als us they ask render decision which could (2) funds have ap been advisory only. We indulge be decline to by the state for proved use “to transport that fruitless exercise. nonpublic school child from the nonpub * * * lic school to the school for call attention to that Defendants Saturday after school services or 38(a) Art. part of III of Constitu * * Clearly, *.” the state provides money may (Paster provide textbooks by the state from the United Tussey, (Mo.banc S.W.2d 1974)) distributed for any pur States parochial schools, for use in provide toor designated by the pose United States.11 (Mo.Const. transportation 8; furnishing They assert Hawkins, McVey 364 Mo. S.W.2d personnel teaching serv (Mo.banc 1953)) parochial eligible stu ices dents, impermissible under the designated schools has been constitu parochial tion of this state. public purpose the United States as a Title I funds used. There other This and evidence to which defend- defendants, fore, argue these funds may be refer, developed in ants cross-examination expended the state for this not plaintiffs’ witnesses, is, of one as we withstanding of our consti it, presented understand in the context of specifically proscribe tution which the use what had been approved by the state in funds therefor. plans previous according understanding Board’s of what was “ap- validity premise We provable” under Act and Missouri law on-the-premises asserted defendants had approved what been by been, parochial school instruction has present plan according authority, designated a purpose for which understanding Board’s used, what was “ap- funds be may particularly I in Title provable” under the Act Pittenger, Meek v. But, and decisions supra. we view federal courts. It is not at all clear base our from not decision on First Amend- do testimony of this witness whether he provisions we base it on the grounds; ment speaking was of previously-approved plans of this state. of the constitution been “disapproved” which had by the feder- disagree argument with defendants’ We present al courts existing plan when 38(a) expend authorizes the state to that § (1) he referred funds used for books and on-the-premises parochial Title I funds for materials, (2) other funds approved for notwithstanding instruction transportation. specifi- of our constitution which provisions the use of funds cally proscribe We conclude that there is no sub 38(a) authorizes the evidence this purpose. Section stantial in to support record injunctive sought by state to receive and disburse these funds for relief defendants. reads, 38(a) part, public money any public in follows: of this Section state for “Money property designated purpose also be received from the United States.” together States and be redistributed the United advanced, in this deny proposition did err under The trial court declaratory opinion these I funds principal rather broad relief Title are ing the IX, defendants, subject However, prin- decline to do Art. sought by so, cipal opinion what is said herein is sufficient overlooks fact that if this because true, in were provision of the issues raised both the said constitutional dispose that such I require and the counterclaim. would Title funds be petition only the income invested therefrom plaintiffs’ claim and judgments on The money utilization used. Such would counterclaim are affirmed. defendants’ in accord with I and is not how are actually funds handled. submit SEILER, J., MORGAN, C. HOLMAN subject Title I funds are not that these JJ., DONNELLY, concur. IX, they “money because are not Art. FINCH, J., separate dissenting dissents a state fund for donated to filed. opinion Instead, they granted are purposes”. funds BARDGETT, J., dissents and concurs in for distribution to respondents local ed- FINCH, separate opinion J. dissenting agencies plan which, for use ucational principal recognizes, “must as the FINCH, Judge (dissenting). * * * designed that eligi- hold respectfully dissent. would ble enrolled schools have children received State of Missouri opportunity participate Title I government pro- the federal under the programs provided to those like Elementary of Title I of the visions in the public children schools of its area”. (herein- Act Secondary Education principal opinion speaks also of these I) special in meeting for use after Title becoming “public I funds funds” of educationally deprived educational needs Missouri, but I find no authority cited with a concentration of children areas supports or even compels conclu- from low-income families does not legislature has not so sion. treated donated a state fund for become Instead, recognized them. it has that these purposes” “public funds” of Title I funds remain federal spending proscrip- by respondents are received applicable of the Missouri Constitution tions being distributed used in accordance properly to funds so classified. illustrate, terms of the Act. To principal The conclusion in the covering bill appropriation appropriation I, 7, IX, Mo.Const. Art. these funds the State Board of Education thereof, perhaps other sections provided as follows: applicable to the use of these Title I 2.360. To Board of “Section holding is based on its that when Education treasury, allotments, grants All and contributions their character as federal funds they lose from the government, to the state for redistribution for granted into the State Treasury under the they specific purposes for which Elementary of the Second- the character of assume awarded Act, II VI for the ary the subject all of restrictions and funds to of administration and distribu- imposed by the Missouri Consti- limitations to schools appropriation regu- the and use of tution on 1969, p. Federal Funds” From Laws deciding, In the public funds. so state lar Obviously, legislature finds such Title I the first that did not consider principal to a that when these Title were constitute donated state funds funds purposes”. government the federal quot- placed from for fund treasury they thereby are contained in Mo.Const. Art. were con- ed words opinion, general They it the to state funds. is obvious from verted appropriated. wherein not so respondents’ as from brief as well subject That there is a distinction between state be imposed to limitations by the money and federal dis funds received and appropriation Missouri Constitution the (as tributed state in the case of Title use of Missouri’s own funds. funds) such federal funds are not recognized This court has re- funds subject to constitutional constraints im specific ceived for purpose but deposited the posed by Missouri Constitution on Mis treasury in the state do not thereby auto- crystal souri by funds made clear money matically “belonging become III, 38(a) of present the or state funds which are subject state” to provides which Constitution follows: proscriptions constitutional toas its use. In general assembly “The shall no have ex State rel. Stevenson v. Stephens, 136 Mo. grant public money or power property, S.W. 506 the was lending or lend authorize the of $100,000 deposited whether in the state credit, to any private person, association treasury for the narrow purpose of protect- corporation, excepting aid in public ing companies investors certain was mon- calamity, general providing laws for ey and, “belonging hence, to the state” sub- blind, pensions age for the for old assist- ject various constitutional restrictions ance, dependent crippled for aid to upon as those relied by such respondents blind, relief, or the for direct for A state statute required herein. that such adjusted compensation, bonus or rehabili- deposited be funds state treasurer. discharged tation for members of the Holding that these funds were not state the armed of United States who limitations, constitutional were bona fide residents this state court, discussing the provi- constitutional service, during their the for rehabili- alleged applicable, to be sions 509: said at prop- tation of other persons. Money or “It manifest may also from erty be received Unit- money only apply ‘belonging to the and be redistributed together ed States money question, state.’ The though it public money of this state with for treasurer, was with for designated by public purpose the United purpose making specific good States.” protection for the security intended During extended debate in the constitu dealing those bond investment com- section, convention tional there was panies, and money belonging was not by attempt delete amendment what is state, meaning within the con- III, 38(a). now the last sentence stitution.” apparent proceedings It is from also Board of v. Buildings See Public sponsors of what is now the second Crowe, (Mo.banc 1962); 363 S.W.2d 598 38(a) thereby intended sentence ex Police Relief rel. St. Louis Ass’n recognize would available to 1166, 107 Igoe, (1937); 340 Mo. S.W.2d government state the federal Thompson rel. ex Board of purposes speci redistribution and use for Regents, (banc 305 Mo. S.W. 698 government, fied the federal some 1924). might not even be foreseeable at That is a there difference between state time the constitutional convention spe- and federal funds earmarked be impermissible by even purposes which cific receives in means of and that it was implied by the language used distributes 38(a) tended second sentence this court Paster receive and redistribute permit (Mo.banc 1974), when Tussey, 512 S.W.2d 97 speci purposes ex- at 105: “This case involves the it said government. Receipt the federal fied ex- course, penditure of ‘state’ funds and mandatory, thereof is made If, of ‘federal’ as the penditure to decline to funds.” state would free however, concludes, accepted, dis Title I accept principal If federal them. funds when was not to become state tribution those federal funds provided treasury, program there to the for possible a comment Various alternatives are have been no occasion for children. would decisions, the foregoing that made in Paster. the de- as discussed Eighth suggesting in the Circuit cision indicated, view it my previously As pro- that abandonment possibility of such III, 38(a) that even without Art. clear may be necessary in Missouri if gram satis- funds, received for distribu federal programs factory cannot or are do and use accordance with course, plan, Of whether such not devised. Missouri and are public funds of become not complies proposed, require- when im subject to constitutional constraints not be, Title I will as it ments of continue to appropriation and use of Mis posed throughout litiga- this has been extended own funds. This conclusion souri’s tion, question a federal to be decided sen more inevitable the last even made courts. II, when, here, 38(a), tence of I entirely federal funds. should deal in so concluding, out that I would

point express

reach on whether sentence would have the of free effect money state”,

ing “public when add money, to federal from other

ed constraints in the Missouri Constitution.

contained is not before us this case That Missouri, Respondent, STATE only. with Title deal I funds Such as we can be briefed and decided if and issue involving present a case that issue is when TOLIVER, Raymond Appellant. L. only III, hold 38(a) I would that Art. ed. No. 59464. receipt and distribution of federal permits imposed by free constraints our Missouri, Court Supreme the use of Missouri’s En constitution Banc.

funds. Dec. Having concluded I funds do that Title “state funds” or donat- become pur- a state fund for ed to and are not to the con-

poses” of the

straints Missouri Constitution I re- would so tell the declaratory in their action.

spondents they implement rule that are free to

would administering pur- plan requirements of that act with-

suant being imposed bound the restrictions

out the Missouri Constitution on the use of pointed funds. As out

Missouri’s Barrera,

Wheeler v. 417 U.S. S.Ct. modified, (1974), 41 L.Ed.2d 95 S.Ct. 45 L.Ed.2d

U.S. Wheeler, and in Barrera v. F.2d 1976), it Mis- (8th Cir. is incumbent on

souri, particularly respondents, and more program which will

devise program children a utili- is comparable of Title funds which

zation

Case Details

Case Name: Mallory v. Barrera

Court Name: Supreme Court of Missouri

Date Published: Dec 30, 1976

Citation: 544 S.W.2d 556

Docket Number: 59219

Court Abbreviation: Mo.