*1 Accordingly, judgment is reversed and remanded for further proceedings consistent with this opinion.
DUNN, J., WOLLMAN, JJ., C. WINANS and concur. DONALD, MC Respondent BD. SCH. OF YANKTON YANKTON, al., IND. DIST. SCH. NO. 1 OF et Appellants (246 93) N.W.2d (File 1976) No. 11550. Opinion July filed
Rehearing September Denied *3 Reade, Kabeiseman, Kabeiseman, Brady, John R. Light & Yankton, relator, for petitioner respondent. and Simko, Woods, Fuller,
William P. Fuller and John E. Shultz Smith, Falls, & Sioux and respondents appellants.
COLER, Justice. mandamus, in in petitioner The this proceeding on behalf of situated, similarly his minor son and 152 other persons seeks to school compel appellant board and members thereof to for and make budget available textbooks to students of a non- within public school the district pursuant SDCL 13-34-16and 13-34-16.1. writ by The of mandamus was issued the trial court which found the statutes to be constitutional under both the constitutions, federal and state and respondent has We appealed. reverse. both in appellants challenged
The the trial court in and this constitutionality court statutes under the Establish- ment the First Amendment to the Clause United States Con- stitution, which made applicable was the states through the Fourteenth Amendment to the United States Mur- Constitution. 105, 108, Pennsylvania, 319 U.S. dock S.Ct. 296, 303, Connecticut, 1940, 1292; 310 U.S. L.Ed.2d Cantwell 1213. 84 L.Ed.2d constitutionality thereof They challenged have further VI, 3, and Arti- Article of S.D. under the § VIII, 16. cle by 13-34-16 Session by amendment SDCL legislature,
The Chapter and Session Laws Chapter Laws of 134, 1, 13-34-16.1 first with the together 100, and Chapter subsequently in 1973 the same enacted 134, 2, clearly has Chapter Session Laws of amended terms, intent, districts of in unambiguous its set forth to non- to loan books at their own cost state are directed this as follows: school students public be loaned free to all
“13-34-16. All textbooks shall one grades school students nonpublic which are twelve who are enrolled schools 13-4. chapter in accordance with supervised in each district shall ascertain what text- school board from are needed such students the district books and shall furnish time to time and shall order the same books upon request. such enrolled Textbooks loaned to children
“13-34-16.1. *4 which are ap- in school shall be textbooks nonpublic a use, by school board for whether actual- public a proved not, ly public or in the school district particular used or in the par- wherein such school is located nonpublic of which the nonpublic ticular school district public by any loaned student is a resident. Textbooks school school students shall nonpublic school district to public nonpublic in dollars school per not exceed value fifteen any year. in school Such values shall be single student to fur- by school district public required determined as to herein obligation provided nish the textbooks. obligation students shall be the nonpublic school district in which such school stu- nonpublic school public dent is a resident.”
603 Yankton, 1943, This court in v. Haas Ind. School Dist. No. of statute, 69 S.D. N.W.2d construing predecessor 15.1706, SDC determined that the then existing statutory provi- sion did not to make purport textbooks available to students of nonpublic schools and thus avoided the determination the con- stitutional issue presented here. It is obvious from the legislative enactments and history thereof that the made no legislature attempt to overcome that decision until well after the United Allen, States Supreme Court decision Board of Education 392 U.S. L.Ed.2d was handed down in 1968.
The latest amendments to SDCL 13-34-16 and 13-34-16.1 in- heavy dicate a reliance on the provisions of New York statutes1 Law, part, existing provisions 1. In the then of the New York Statute Education Allen, as construed in Board of Education read as follows: state, education, “1. In the several cities and school districts of the boards of boards, body perform trustees or such designate or officer as the functions of such shall charge. text-books to be used the schools under their text-book, purposes “2. A pupil for the of this section shall mean a book which required particular is school he to use as a text for a semester or more in a class in the legally attends. state, education, “3. In the several cities and school districts of the boards of body perform trustees or such or officers as the function of such boards shall duty power purchase upon have the children request, and to loan individual to all residing grades in such district who are enrolled in seven to twelve of a law, private complies or compulsory school which with the education grades text-books. Text-books loaned to children enrolled in seven to twelve of private designated any said schools shall be text-books which are use elementary secondary public, boards of by approved or schools of the state or are education, or trustees other school authorities. Such text-books are to subject regulations be loaned free to such children to such rules and as are or education, prescribed by regents be the board of and such boards of trustees or other school authorities. shall, during year sixty- “4. No school district the school nineteen hundred sixty-seven, year sixty-seven —sixty-eight the school nineteen hundred six— year —sixty-nine sixty-eight the chase or otherwise shall exceed an amount children year which year shall exceed an amount required pur- school nineteen hundred be textbooks, section, acquire pursuant to this the cost of which equal multiplied to fifteen dollars the number of day residing in such district who on the first of October of such school grades private are enrolled in seven twelve of a school law, complies compulsory any subsequent with the education or in school textbooks, acquire required purchase or otherwise the cost of which equal multiplied to ten dollars the number of children day residing in such district and so enrolled on the first of October of such year; subsequent required and no school district shall be to loan text- district; acquired by provided, books in excess of the textbooks owned or however that all textbooks owned or children in such acquired such district shall be loaned to residing *5 grades in the district and so enrolled in seven twelve private equitable and an schools on basis. state, education, “5. In the several cities and school districts of the boards of Allen, supra. of Education were in Board upheld which text- to school analysis relating of Dakota statutes An South 13-34, books, in amended re- significantly which has been SDCL subject. to that pertaining years, language leaves little cent the South Dakota differences between significant there are While York, sufficient it appear those New would statutes and the in- accomplish by legislature our adopted was language constitutional. While the could be held result if statutes tended use, it will determines what textbooks the school district itself education, by the state board of preserved with review 13-34-11, herein consideration that section the statutes under with text- dealing chapter that remain of a once detailed are all books. of fact findings decision and trial court’s memorandum establish, reflect, before us whether nor the record
do not does by parents the borne students the costs textbooks are students, by are the sectarian in- costs borne or whether those was falling parents the upon The fact of the burden stitution. Allen, and in supra, Education v. both Board of present found 44 L.Ed.2d Pittenger, U.S. Meek cases, with decisions of that earlier keeping 217. Both of these Education, 1930, court, State Board of v. Louisiana see Cochran acknowledged that 74 L.Ed. have 50 S.Ct. U.S. of sectarian schools students loans of state-owned textbooks of church and state under involvement permissible constitutes Constitution, provided of the Federal the Establishment Clause have been met state statute. therein established the tests finding whether the lack of a We do not determine or, alleged as also bear the cost textbooks parents policy lack statement2 renders legislative appellants, rent, may purchase supplies or other authorities and either sell trustees or loan the same school districts prescribed attending pupils in such cities and schools upon regulations under such as such terms and rules and education, such boards of trustees other school authorities.” that, appellants challenged question have statutes in while 2. The are York, policy patterned after the of New there was no statement accom- statutes panying, done York. as was of in New By way example, Chapter of Section 1 320 of the Laws of
605 in the tests established law void under the of our provisions Allen, supra, v. Pittenger, v. and Meek supra, Board of Education are own state constitution the of our provisions as we determine controlling. con court which have of the decisions of this
Mindful
VIII,
VI, 3 and Art.
Art.
S.D.Const.
sidered
§
366,
State, 1891,
16,
N.W.
v.
2 S.D.
50
namely Synod of Dakota
296;
Brewe, 1931,
351,
632;
Haas v.
236 N.W.
v.
58 S.D.
Hlebanja
Yankton,
South
1 of
and
supra,
School Dist. No.
Independent
v. St.
Activities Association
Dakota
School Inter-Scholastic
High
84,
Salem, 1966, 82
S.D.
Mary’s Inter-Parochial School of
in
recent
depth
N.W.2d
we have nevertheless
considered
states,
well
con
differing
of courts of other
as
as
decisions
states,
ac
of those
in which there has been
stitutional
statutes,
amendments or
tivity
way
in the
of either constitutional
both,
mode of
aid to non
acceptable
giving
some
accomplish
legislature
We do not doubt the motives
public schools.
considering
pressing
to do
attempting
equity,
this state
demands on both the
and
ever-increasing
public
and
financial
with a dual
taxpayers,
and the burden it
on
private
places
schools
nonpublic
parents
schools. We are
of children
burden on
follows:
New York
reads as
security
policy.
the nation
“Section 1. Statement of
The
and welfare of
development
require
youth.
the mental resources and skills of its
the fullest
opportunities
adequate
and in-
This calls for more
educational
requiring
nation
creased efforts to educate more of the talent of our
and
programs which
the correction of those imbalances in our educational
proportion
population
have led to an insufficient
of our
educated
mathematics,
science,
foreign languages and other nonsectarian
fields of
principle
subjects.
Congress
The
of the United States has reaffirmed the
primary responsibility
that the
public
that the
and local communities retain
states
hereby
policy
education. It is
declared to be the
of the state
safety
require
and
that the state and local com-
welfare
give
programs
important
which are
munities
our national defense and the
assistance
educational
general
welfare of the state.”
policy
legislative
failure of
enactment to
forth a statement of
we do
set
practice
generally
significant
it
not
followed in this
not consider as
since
is
statutory
accepted
It
rule of
construction in this state that the act
state.
itself must reflect the
is the
preambles
legislative
en
intent and while
or recitals are
City
great weight,
binding
court.
v.
titled to
are not
on this
Clem
Yankton,
preamble
N.W
125. A
to to
83 S.D.
.2d
looked
ambiguities
recognized
Equitable
resolve
as was
this court in Culhane
Life
U.S., 1937,
Soc. of
65 S.D.
It has
been the rule of this court that:
long
*7
constitutionality
any
of
“When
the
considering
validity
of
no
statute there is a
and
statute
presumption
be held
‘unless its infringement
should
unconstitutional
plain
palpable
of constitutional
restrictions
is so
and
to
doubt’,
admit of no reasonable
State
Black Hills
28,
71 S.D.
“The constitution is not a
but a limitation
grant
upon the
lawmaking power
legislature
of the state
and it
any
inferentially
enact
law not
expressly
prohibited
by state and federal constitutions.”
Kramar
Bon
1968,
County,
Homme
83 S.D.
N.W.2d 550.
Although
behind the
of Art.
VII, 11, of the
of Nebraska has been preserved
as
set forth at 220 N.W.2d
we are not so fortunate. As reflected
notes,
in the editor’s
certain
portions
manuscript
covering
Ill,
2, 3,
Art.
S.D.Const.
and 5 were not available for publica-
§§
by
(see
S.L.1907,
tion as authorized
S.D.
Ch.
Constitutional
281).
Debates,
I, p.
Vol.
Considering
very
active participation
in the
1885 and 1889
constitutional conventions
one
Alphonso
County,
G. Kellam of Brule
who also served as one of
the three
members
this court from 1889 to
the likelihood
misapprehension
to be
purpose
served
the state con-
Kellam,
stitutional provisions by either the
A.
same G.
the then
court,
presiding judge
this
or either of the other two members
Therefore,
of the court
seriously
is too remote to be
entertained.
*8
we must
that
recognize
of this
holding
Synod
court
of
State,
VI,
v.
Dakota
to
supra,
the effect that the provisions of Art.
VIII,
3 and Art.
16 are “self-executing,” and that these provi-
§
§
sions are
of
expressions
the framers of the constitution “to pro-
form,
otherwise,
hibit in every
whether
gift
as a
or
the appropria-
tion of the public funds for the
any
benefit of or to aid
sectarian
373-374,
school or
institution.”
S.D. at
state constitution are not
of
mere reiterations
the Establishment
of the United States
but are more
Clause
restrictive
every
“in
prohibiting
as
aid
form.”
State,
Synod
further
that
Respondents
claim
of
Dakota
is
present
from the
case in
supra,
distinguishable
that that case
institution,
with
dealt
of
a
payment
funds to
sectarian
while the
only
statutes here involved
authorize a
loan
textbooks. We con-
State,
Synod
strue
of Dakota v.
supra, as
with
consistent
holding
Supreme
Nebraska
Court on
a similar
construing
constitutional
provision
such contention of indirect benefit
form,
rhetoric,
reality
for
“ignores substance
and would lead
* * *
to total circumvention of
principles
of our Constitution
.”
Gaffney
Education,
Department
State
supra,
The respondents have also urged this court to affirm the
districts,
judgment
the trial court on the basis that school
not
VIII, 16,
being specifically enumerated in Art.
thereby
are not
barred from
giving
appropriating money
property to a sec
or religious society
tarian
or institution.
findWe
this contention
without
merit as it ignores the basic fact of the numerous
state funds channeled to school districts with no
iden
separate
local
tifiable
fund set
purchase
aside to
the required textbooks
(see
13-34-12,
S.L.1974,
2)
repealed
Ch.
thus
VI,
violating the provisions of S.D.Const. Art.
3.
if
Even
funds,
funds were so identifiable as
avoid
the use of state
court,
though perhaps not
this
controlling,
construing other
this state’s constitution has held that
the words
*9
“municipal corporations” in their ordinarily accepted and more
enlarged
sense of
local corporations may include “school
Co., 1936,
Egan
32,
district.”
Sch. Dist. v.
Con.
Minnehaha
S.D.
1895,
Appellants have as assigned error an implied finding of the trial court it jurisdiction had under the provisions 21-29 SDCL proceed mandamus where there was an ade- law, 13-46-1. namely remedy appeal pursuant at an SDCL quate court, statutes enacted under construing decisions of this Prior V, 14, Art. which is existing provisions the then S.D.Const. § approved of Art. have provisions V,-§5, not unlike the current But, acknowledged this court has also the denial of a writ. Commrs., C., M., 64 S.D. St. P. & P. R. R. R. Co. authority jurisdiction of circuit power, N.W. that the and determine the same courts to issue remedial writs and hear destroyed by the legislature. cannot be diminished or impaired, nature of these raised in this questions ap- Because of the appeal the trial court well have determined that on peal, cir- from the school board decision even a trial de novo in 13-46-6, contemplates cuit court which also pursuant SDCL enforcement, a meaningful mandamus as a means of record could developed not have been for a final determination of the issues We find no abuse of the trial court’s discretion presented. this entertaining proceeding.
We therefore hold that the 13-34-16.1is provision SDCL and, unconstitutional to the extent that 13-34-16provides SDCL students, for the loan of it private textbooks to is likewise VI, unconstitutional under the Art. S.D.Const. VIII, and Art. 16.§ Accordingly, judgment and order granting peremp- reversed, tory writ of mandamus are with direction to quash writ and dismiss these proceedings.
No costs shall be taxed as a public
is involved.
question
Barron, 1969,
McFarland
83 S.D.
DUNN, J., dissents. C.
DUNN, (dissenting). Chief Justice majority opinion holds 13-34-16and 13-34-16.1un- VI, 3, under the constitutional VIII, Article and Article of the South Dakota It Constitution. does not reach the *10 the Establishment two statutes violate whether the of question States to the United Constitu- the First Amendment of Clause Supreme what the States Court a review of United tion. I think if the only not to determine this is important, has area said by the state school children nonpublic texbooks to of loaning to it but also as whether States violates the United our own violates Constitution. nonpublic school of of to children
The issue
loans
textbooks
in the
of
Court
1930case
Supreme
the
States
first reached
United
Education,
281 U.S.
v. Louisiana State Board of
Cochran
there was whether a
specific
L.Ed. 913. The
question
nonpublic
to
school children
providing
law
free books
Louisiana
in violation
public property
private purposes
of
for
taking
was a
Amendment. The reason the Establishment
of
Fourteenth
the
was
the
First Amendment was not considered
that
Clause
states
yet
not
that
clause
the
applied
particular
had
Court
upheld
The
Court
Supreme
the Fourteenth Amendment.
the
of
Loui-
doing
language
the
law and in
so
the
quoted
textbook
opinion
in its
as follows:
siana
Court
Supreme
“
specific pur-
made for the
appropriations
‘The
were
of the school
school books for
use
purchasing
pose
state,
It was
of cost to them.
free
children
the state that
benefit to
resulting
their benefit and
True,
children at-
were made.
these
appropriations
latter,
school,
sectarian
private,
tend some
nonsectarian,
furnished
the books are to be
cost,
use,
they
whichever
attend.
for their
free of
them
schools, however, are not the
these
The
beneficiaries
them, nor are
They
nothing
obtain
appropriations.
from
them.
relieved
single obligation
because
are
and the
state
alone
children
”
374-375,
281 U.S. at
(Emphasis supplied)
beneficiaries'
at
611 Education, 1946, Board 330 U.S. 67 91 L.Ed. S.Ct. the challenge Jersey was to a New law which authorized school parents parochial districts to reimburse school children the cost of transporting the children to school on public transporta- Court, Black, tion. Supreme The Mr. Justice held that Clause, the law did not violate the Establishment as the benefit of the law went to the school children and their rather than parents, sect or religious parochial schools. The con- Court cluded the opinion saying:
“The money State contributes no to the It schools. does not support them. Its legislation, as does no applied, provide more than a general program to help parents children, get their regardless safely their religion, and expeditiously to and from accredited schools.” 330 at U.S. at 91 S.Ct. L.Ed. at 725.
In 1968 the Supreme Court the “child applied theory benefit” to a New York law which required districts to purchase and loan textbooks students enrolled in parochial as well inas public and private schools. The issue was whether the law violated the mandates of the Establishment Clause. Court not, held that it did prime placing reliance on the fact that the books went directly to the students and directly did not benefit or aid parochial schools.
“Appellants have shown
nothing
us
about
necessary
effects of the statute
contrary
that is
pur-
to its stated
pose.
merely
The law
makes available to all children the
general
benefits of a
program to lend school books free
of charge. Books are furnished at the request of the
remains,
pupil and ownership
at least technically, in the
State.
no
Thus
funds or books are furnished to parochial
schools, and the financial benefit
is to parents and
children, not to
Perhaps
schools.
free books make it
likely
more
that some children choose to attend a sec-
school,
tarian
but that was true of the
bus
state-paid
fares in Everson and does not alone demonstrate an un-
constitutional degree of support for a religious institu-
Allen,
tion.” Board of
Education
392 U.S. 236 at
243-244,
1926-1927,
1923 at
The Allen good years case is still law. In more recent Supreme has Court added other tests. These were summarized in 1753, 44 the case of Meek v. Pittenger, U.S. 95 S.Ct. L.Ed.2d 217.
“First,
the statute must have a secular legislative pur-
Arkansas,
97,
pose. E.g.
393
Epperson
U.S.
89 S.Ct.
266,
Second,
In Meek the applied Court the above tests to the textbook loan provisions Pennsylvania of a law. itWhile struck down other pro- Clause, visions of the law in the face the Establishment upheld Court loans of to parochial textbooks school children. The Court stressed that the benefits accrued to the children rather than to the schools. sum,
“In
loan provisions
textbook
of Act 195 are
in every material respect
identical to the loan program
York,
in Allen.
approved
Pennsylvania,
like New
‘mere-
ly makes available to all children the benefits of a
general
lend
program to
school books free of
As
charge.’
such,
provisions
those
Act
195 do not
offend
con-
prohibition
against
stitutional
laws
an
‘respecting
”
establishment
religion.’
421
at
U.S.
95
at
S.Ct.
1761-1762,
Based upon holdings of the Supreme Court Allen and 13-34-16 and 13-34-16.1 with comport the Establishment of the Clause First Amendment to the United States Constitu- tion. These two cases have with approval very been cited in the recent Supreme United States case of Roemer v. Board of Court Maryland, Public Works of U.S. L.Ed.2d decided June 1976. majority states that opinion provisions of the South Dakota are Constitution more restrictive than the Establishment I do not feel that a lengthy Clause. discussion of whether the South Dakota are more restrictive than Pennsylvania Establishment or the Clause Constitution the Nebraska any way will in resolve the help validity overall question of the of the challenged provisions under the South Any Dakota inquiry Constitution. should be directed first to the words of the constitutional sections involved. VI, 3,
Article states in pertinent part: “No person shall be compelled to attend or support any ministry or place worship against his consent nor any shall preference given law to religious *13 establishment or mode of worship. money No or prop- erty of the state shall be or given for the appropriated any benefit of sectarian or religious society or institu- tion.” VIII, 16,
Article states: lands, “No appropriation money or other prop- erty any or credits to aid sectarian school shall ever be state, any county made the or or within municipality state, the any nor shall the state or county or municipali- ty any within the state accept grant, conveyance, gift lands, bequest money or other property to be used for sectarian and no sectarian purposes, instruction shall be any allowed in school or institution aided or supported by the state.”
It my is feeling that this case key revolves around the words any “benefit of sectarian or religious society or institution” and any “aid sectarian school” in the above quoted sections. While the wording greatly these sections varies from the words of simple Clause, same; the Establishment the meaning expend- is the state itures pro- which aid and benefit societies or schools are religious hibited. the inquiry Thus should be the same under our own Con- stitution as that Supreme used the with the Establish- Court ment Who the benefits of the reaps challenged legisla- Clause: tion, Cochran, the schools or the school children? In Allen and Meek, supra, Supreme explicitly Court has said that when the children, state loans parochial school textbooks benefit accrues to the children and the state rather than to VI, 3, VIII, 16, sectarian institution. Article and Article of our clearly state that the not benefit expenditures must society and aid a religious institution. Since 13-34-16and institutions, directly 13-34-16.1 do not benefit these should upheld by this court. The majority opinion does not distinguish this court’s State, 1891, Synod holding Dakota S.D. 50 N.W. from the present case. It states that to attempt distinguish cases would somehow circumvent the principles of our Constitu- I tion. I feel that disagree. failing to set out the factual and differences legal opinion only not circumvents the principles of our ignores Constitution but also plain words rele- State, vant constitutional sections. Synod The case of Dakota supra, involved payments University, State to Pierre case, Presbyterian for College, student tuition. Unlike the instant money directly was to a sectarian paid institution for the benefit of that institution in its operations. Here we have books loaned to school children for the benefit of their respective secular educa- short, ultimately tion and for the benefit of In Synod the state. cannot be considered as precedent declaring challenged statutes unconstitutional. The difference in the facts of the two cases is to me the difference between an unconstitutional *14 ap- propriation money to sectarian colleges and a constitutional loan of books children who to attend happen schools. nonpublic
A education is one of quality the most that important gifts wisdom, our children can receive. The legislature, its collective sought has to insure a quality education for all the children of the state secular loaning textbooks to them free of It charge. schools, that or sec- purpose insuring fulfills further all tarian, study which is the state for up abide a course of set its school children. The use of the same textbooks would serve study I carry changed out this course of for all students. have not my mind on the of state aid to a sectarian institution question the benefit of that institution or its This should not be operations. tolerated, I but do not believe some children should attend deprived simply happen of these books because schools, sectarian nor do I feel that our federal or state Constitu- tion so mandates. The and order of the circuit court judgment should be affirmed. LEWIS,
STATE, Appellant Respondent 307) (244 N.W.2d 1976) (File July No. 11495. filed Opinion