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AGO 1958 No. 226 - October 31, 1958
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John J. O'Connell | 1957-1968 | Attorney General of Washington

LEGISLATURE ‑- AUTHORITY TO ENACT LEGISLATION AUTHORIZING USE OF STATE FUNDS FOR SCHOLARSHIPS IN THE FORM OF CASH AWARDS, LOANS OR FREE TUITION AND FEES.

(1) Legislation providing state funds to any institutions of collegiate grade in Washington, accredited by the Northwest College Association, including sectarian institutions, for the purpose of establishing scholarships for needy students, whether in the form of loans, cash awards, or free tuition and fees, would be unconstitutional.

(2) Legislation providing state funds to any state institution of collegiate grade in Washington, accredited by the Northwest College Association, for the purpose of establishing scholarships for needy students, whether in the form of loans, cash awards, or free tuition and fees, would be constitutional.

(3) Legislation providing state funds, directly to needy students whether in the form of loans or cash awards, to use for educational expenses at any institution in Washington accredited by the Northwest College Association, whether state or private, and including private sectarian institutions, would be constitutional.

                                                                  - - - - - - - - - - - - -

                                                                October 31, 1958

Honorable R. R. (Bob) Greive
State Senator
Thirty-Fourth District
4127 45th Avenue S. W.
Seattle, Washington                                                                                             Cite as:  AGO 57-58 No. 226

Dear Senator Greive:

            By letter, previously acknowledged, you have requested an opinion of this office regarding the following matter:

            "Pursuant to legislation that is being considered relative to the strengthening of the scholarship system for education deserving college students who are without funds, I am requesting an opinion as to the constitutionality of the following:

             [[Orig. Op. Page 2]]

            "1. Loans, derived from state funds, to college students through any institution of collegiate grade located in Washington, if such institution is accredited by the Northwest College Association.

            "2. Cash awards, derived from state funds to college students through any institution of collegiate grade located in Washington, if such institution is accredited by the Northwest College Association.

            "3. Free tuition and fees, reimbursed to the institution from state funds, to college students at any institution of collegiate grade, if such institution is accredited by the Northwest College Association.

            "4. Loans, derived from state funds, directly to college students for use in paying educational expenses at any institution of collegiate grade located in Washington, if such institution is accredited by the Northwest College Association.

            "5. Cash awards, derived from state funds, to college students for use in paying educational expenses at any institution of collegiate grade located in Washington, if such institution is accredited by the Northwest College Association.

            "6. Loans, derived from state funds, to college students through any state supported institution of collegiate grade located in Washington, if such institution is accredited by the Northwest College Association.

            "7. Cash awards, derived from state funds, to college students through any state supported institution of collegiate grade located in Washington, if such institution is accredited by the Northwest College Association.

            "8. Free tuition and fees, reimbursed to the institution from state funds, to college students at any state supported institution of collegiate grade located in Washington, if such institution is accredited by the Northwest College Association.

            "9. Loans, derived from state funds, directly to college students for use in paying educational expenses at any state supported institution of collegiate grade located in Washington, if such institution is accredited by the Northwest College Association.

            "10. Cash awards, derived from state funds, to college students for use in paying educational expenses at any state supported institution of collegiate grade located in Washington, if such institution is accredited by the Northwest College Association."

             [[Orig. Op. Page 3]]

            While we do not rule on the constitutionality of laws duly enacted by the legislature, since the power to so do rests exclusively with the courts, we will, of course, advise legislators on the constitutionality of proposed legislation when so requested.  AGO 1891-92:78 [[1891-92 OAG 78)]].

            We conclude that the first three proposals are unconstitutional for reasons set forth in the analysis; we conclude that the remaining proposals are constitutional.

                                                                     ANALYSIS

            Perhaps we should observe in the first instance the fundamental proposition that the legislature may enact any law not expressly or inferentially prohibited by our state constitution, the constitution being a limitation rather than a grant of power.  In re Bartz, 47 Wn. (2d) 161, 287 P. (2d) 119 (1955); Gruen v. State Tax Commission, 35 Wn. (2d) 1, 211 P. (2d) 651 (1949).

            The first three proposals have a common factor bringing each within certain constitutional prohibitions.  Each of these proposals provides public funds to students through any institution of collegiate grade, which includes, of course, those of sectarian nature.

            The Washington state constitution provides:

            ". . . No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment. . . ."  (Emphasis supplied.)  Article I, § 11 as amended by the 4th amendment.

            "All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence."  Article IX, § 4.

            Since these proposals contemplate appropriation of public funds to colleges or universities, some of which may be sectarian, for the benefit of students at such institutions, they provide a benefit to the sectarian institution, clearly in violation of the constitutional provisions set forth above.  Mitchell v. Consolidated School District, 17 Wn. (2d) 61, 135 P. (2d) 79 (1943); Visser v. Nooksack Valley School District, 33 Wn. (2d) 699, 207 P. (2d) 198 (1949).

            As to the remaining seven proposals we find no constitutional prohibition, and in our opinion they are constitutional.

             [[Orig. Op. Page 4]]

            Of course, a bare conclusion is insufficient for your purposes.  Accordingly, we will consider germane provisions of the constitution and show why they do not prohibit the program you propose.

            (1) The public purpose doctrine.

            Amendment 14 of the state constitution provides, in part:

            ". . . All taxes . . . shall be levied and collected for public purposes only. . . ."

            Argument against programs of this nature is often based on the contention that public funds are being raised and expended for a private purpose in violation of the foregoing constitutional provision.  Regarding the concept that taxes can be levied and collected only for a public purpose, our court said in State ex rel. Hart v. Clausen, 113 Wash. 570, 572, 194 Pac. 793 (1921):

            ". . . As was said in State ex rel. Reclamation Board v. Clausen, 110 Wash. 525, 188 Pac. 538, it is not always easy to determine whether the purpose of an act in the exercise of the taxing power is public or private.  It is there pointed out that there are three classes of cases:  First, those where the purpose of the act is clearly public; second, cases where the purpose is clearly private; third, a twilight zone between these two where the question as to whether the purpose is public or private is difficult of determination.  It was there held that, where the question of the purpose presented opportunity for difference of opinion as to whether it was public or private and fell within the zone of indefinite cases, the question was one for the legislature, and when that body had exercised its discretion, it would not be disturbed by the courts.  If the purpose for which the taxing power is exercised is a public purpose, a moral obligation on the part of the state to meet that purpose is sufficient to sustain the law.  In other words, if there is a moral and honorable claim upon the public treasury, although there be no debt which could obtain recognition in a court of law or equity, a basis for the exercise of the taxing power is furnished. . . ."  (Emphasis supplied.)

            There is, of course, no doubt that the advancement of education is a public purpose; indeed, by express mandate of the Washington constitution,  [[Orig. Op. Page 5]] education of our children is a paramount duty of the state.  Article IX, § 1; State ex rel. Tattersall v. Yelle, 152 Wash. Dec. 800 (1958) [[52 Wn. 2d 856]].  See also Casper v. Longview School District No. 122, 5 Wn. (2d) 403, 105 P. (2d) 503 (1940); Hoskins v. Commissioner (5th Cir.), 84 F. (2d) 627 (1936).  In any event, should it be questioned that such is a public purpose, we think it well settled that it is within the province of the legislature to declare that the instant program is for a public purpose.  State ex rel. Hart v. Clausen, supra; Daggett v. Colgan, 92 Cal. 53, 28 Pac. 51 (1891); Hagler v. Small, 307 Ill. 460, 138 N.E. 849 (1923); Grout v. Kendall 195 Iowa 467, 192 N.W. 529 (1923).

            We deem it clear that the legislature may raise funds for the program proposed.

            (2) Aid to private individuals.

            Article VIII, § 5, of the Washington constitution provides:

            "The credit of the state shall not, in any manner be given or loaned to, or in aid of, any individual, association, company or corporation."

            Perhaps the most frequent argument made against programs of this nature, granting public funds to individuals, is that such violates the foregoing constitutional provision.

            We believe it now settled in this jurisdiction that such argument is without merit.

            The first significant case interpreting Article VIII, § 5, was Morgan v. Department of Social Security, 14 Wn. (2d) 156, 127 P. (2d) 686 (1942).  In that case, the court upheld the senior citizens grant act against the attack that such was in violation of Article VIII, § 5.  The court said at page 169:

            "Amici curiae have filed a brief, arguing, first, that initiative 141 is unconstitutional and void, and, second, that if the entire act is not void certain sections thereof should be held unconstitutional.  In support of the contention that the entire act is void, it is argued that the act purports to benefit private individuals who are not in need.  The support of the poor and needy is a recognized public governmental function.  If the act by its terms purports to relieve persons not in actual need, it might well be challenged upon constitutional grounds, but while the 'declaration of intent,'supra, contains a statement, arguendo, that need is not the only, or the best, basis for an old-age pension, the latter portion of the declaration shows beyond question that the act as  [[Orig. Op. Page 6]] drawn operates for the benefit of persons 'without resources and income,' or upon a basis of need alone.  Considering the entire act, we hold that no person who is not in need may be a beneficiary thereunder.

            ". . .

            "The argument advanced by amici curiae, to the effect that the entire act should be held void as purporting to grant relief to persons described in the act as possible beneficiaries thereunder, upon some basis other than need, is not well founded, and the act cannot be held unconstitutional."  (Emphasis supplied.)

            As we read the case, the court holds therein that the support of the poor and needy is a recognized public governmental function‑-a public purpose‑- and that therefore the program of direct aid to individuals does not come within the prohibitions of Article VIII, § 5.

            Later, in the case of State v. Guaranty Trust Co., 20 Wn. (2d) 588, 148 P. (2d) 323 (1944), the court held that § 13 of the senior citizens grant act providing, at death of any recipient under the act, for a one hundred dollar funeral expense allowance was unconstitutional in so far as it might apply to those who died leaving sufficient property to defray funeral expenses.  Therein the court said at pp. 592, 593:

            "While it might be urged with much force that, as a matter of strict constitutional construction, state funds cannot be used to aid needy persons, and that this must be done, if at all, by the enumerated political subdivisions of the state, yet we did not make such distinction in the Morgan case, but seemingly adopted the view that the 'recognized public governmental functions' applied to the state in its sovereign capacity as well as to its political subdivisions; and, for the purposes of this case, we will so regard the state with reference to the senior citizens grant act.

            "[2] It will be seen from what we have said in deciding the Morgan case that the only legal justification for the aid of citizens of the state is that those aided must be without resources or income and upon the basis of need alone.  The lawmaking power of the state has the authority, within reasonable limitations, to declare what shall be deemed a resource or income, and it has done so in the act.

             [[Orig. Op. Page 7]]

            "* * *

            "The principle underlying this rule is that public funds are trust funds, and the public agents who handle and pay the funds out do not have authority to pay them to anyone when the law forbids such payment.  Our constitution, as we construe it, forbids the use of public funds to aid any person unless he is in need, and, as we have held, if a senior citizen having a grant dies leaving an estate, there is not then existing the need that the act contemplates, and money paid for funeral expenses, other than as herein referred to, is a payment made contrary to law."  (Emphasis supplied.)

            In our opinion, this case did not change the rule of the Morgan case.  As we read this case, the court says that without "need" there can be no public purpose; and without public purpose, there is, of course, no justification for raising or expending public funds.

            Then came the case of Gruen v. State Tax Commission, 35 Wn. (2d) 1, 211 P. (2d) 651 (1949), which is the most definitive and enlightened case interpreting Article VIII, § 5.  In that case the constitutionality of the veterans' bonus act of 1949 was challenged.  Therein the court said at pp. 27-30:

            "The next challenge to the constitutionality of the act is predicated upon the theory that it violates Art. VIII, § 5, of our state constitution, which reads:

            "'CREDIT NOT TO BE LOANED‑-The credit of the state shall not, in any manner, be given or loaned to or in aid of any individual, association, company, or corporation.'

            "Respondent contends that the whole tenor and purpose of the act is to raise the sum of eighty million dollars, or more, which in turn is to be given as a 'bounty' or 'bonus' or 'adjusted compensation' to certain private individuals or groups of individuals.  The question presented, in so far as it affects acts of the character here reviewed, is of first impression in this state.

            ". . .

            "The respondent bases his contention principally upon the decision of the court of appeals of the state  [[Orig. Op. Page 8]] of New York in People v. Westchester County Nat. Bank, 231 N.Y. 465, 132 N.E. 241, 15 A.L.R. 1344.  This case is directly in point and upholds respondent's point of view.  The constitution of the state of New York provided:

            "'The credit of the state shall not in any manner be given or loaned to or in aid of any individual.'  Art. 7, § 1.

            "'Neither the credit nor the money of the state shall be given or loaned to or in aid of . . . any private undertaking.'  Art. 8, § 9.

            ". . .

            "The attorney general has called our attention to a case which is also directly in point, that being Grout v. Kendall, 195 Iowa, 467, 192 N.W. 529.  In that case, the issue of lending credit was before the court, the same as it was in the New York case.  The constitutional provision was identical with that of the New York constitution cited by respondent.  The Iowa court held that the state's incurring of a primary indebtedness to pay a bonus was not within the prohibition of the article mentioned.  Speaking of the constitutional provision, the court said:

            "'The section does not, in terms, purport to deal with the creation of primary indebtedness by the state for any purpose whatsoever.  The prohibition is that the state shall not lend its credit to any other being whatever, and that it shall "never assume" the debts or liabilities of any other being whatsoever.  Omitting now all reference to the closing proviso, is there a distinction to be observed between a loan of credit and the power of the constituted authorities of the state to create a primary indebtedness to subserve some public purpose or in response to some moral obligation?  This section is not qualified in terms by any subsequent section.  When we define its field, its prohibition is supreme therein and irrevocable. . . .

            "'We hold, therefore, that the prohibition of Section 1, Article 7, has no reference to the creation  [[Orig. Op. Page 9]] of a primary indebtedness.  It necessarily follows that the power to create such an indebtedness and the limitations thereon must be sought in other section of the Constitution.'

            ". . .

            "To our minds, the holding of the supreme court of the state of Iowa is more convincing than is the holding in the New York case.  In the Iowa case, the court simply determined the meaning of the constitutional provision according to the plain wording and intent of its sections."  (Emphasis supplied.)

            Article VII, § 1 of the Iowa constitution provides:

            "The credit of the State shall not, in any manner, be given or loaned to, or in aid of, any individual, association, or corporation; and the State shall never assume, or become responsible for, the debts or liabilities of any individual, association, or corporation, unless incurred in time of war for the benefit of the State."

            Note above our court's declaration that this section of the Iowa constitution is identical with the New York constitution.  By this declaration it appears our court was referring only to Article VII, § 1, of the respective constitutions; for the Iowa constitution contains no provision similar to Article VIII, § 9, of the New York constitution also set forth in the foregoing language of the Gruen decision, nor does the Washington constitution.  This, we believe, explains the difference in the results of the Iowa and New York cases in question in the Gruen decision and why the Washington court found the Iowa case more convincing.

            The similarity between Article VIII, § 5, of the Washington constitution and Article VII, § 1, of the Iowa constitution is apparent.  Since our court has cited the Grout case as authority for interpreting Article VIII, § 5, of our constitution, some further language of the Iowa decision is helpful.  Immediately following the first paragraph quoted by our court from the Grout decision, the Iowa court defined the limits of the constitution section in question, saying:

            "What is meant herein by a loan of 'credit'?  When one signs an accommodation note and delivers it to his neighbor, he loans his credit to his neighbor.  He has not created a debt to him.  The neighbor is authorized to use the credit with third parties; but he is also under obligation to the maker to protect him against liability  [[Orig. Op. Page 10]] and ultimately to return the note.  When one becomes surety for his neighbor and signs his promissory notes to third parties, he loans his credit. . . .

            "It [the constitution]withheld from the constituted authorities of the state all power or function of suretyship.  It forbade the incurring of obligations by the indirect method of secondary liability.  This is the field and the full scope of this section.  It does not purport to deal with the creation of a primary indebtedness for any purpose whatever. . . ." (Emphasis supplied.)  (192 N.W. 531.)

            After defining the limits of the constitutional section in question, the Iowa court went on to say:

            "There are a few general propositions which appellant presses upon our attention which may be briefly noticed.  These are:  That the legislation makes appropriation for the benefit only of individuals and not for a public purpose; that the state is under no legal or moral obligation to make such appropriation; that, therefore, the appropriation is a mere gratuity.  The argument at this point is based upon the analogies of private law.  True it is that a promise of gratuity is not enforceable as between individuals and that a mere moral obligation is not a valuable consideration.  True it is, also, that the inherent power of taxation possessed by a sovereign state can be lawfully exercised only for a public purpose.  The analogies of private law in respect to valuable consideration are not particularly helpful in defining the legislative power to appropriate moneys for specified purposes.  The legal obligations of a state are few as compared with the legislative appropriations which it makes.  Legislative appropriations are not ordinarily made under legal compulsion.  The great body of the obligations of a state are moral rather than legal.  Legislative appropriations are made voluntarily either in response to moral obligation or to public expediency.  In either event, they may be made for a public purpose.  They are gratuitous in the sense that they are not compulsory.  Whether a particular purpose is a public purpose, and whether it has the sanction of a moral obligation of the state, are questions which have never been definitely answered or defined.  It has been quite uniformly held by the courts that the determination  [[Orig. Op. Page 11]]of such questions inheres largely in the legislative power. . . ."  (Emphasis supplied.)  (192 N.W. 533.)

            After citing with approval and quoting extensively from the Grout decision, our court concluded, in the Gruen case, that the veterans' bonus act did not violate Article VIII, § 5, of the Washington constitution, saying:

            "The payment of a compensation or bonus to veterans has been held to be for a public purpose and undertaking.  The purpose and undertaking is to supplement the pay of the veterans, and thereby

            "'. . . encourage the spirit of loyalty and patriotism and so promote the public good by affording visible evidence that hereafter, if there should be a call for men, the commonwealth would not forget those who had served its cause.'

            "In the past, courts have upheld statutes which have provided:  (1) bounties for soldiers (see 7 A.L.R. 1636); (2) the issuance of bonds for the purpose of constructing a memorial to the soldiers and sailors of the first World War (Hill v. Roberts, 142 Tenn. 215, 217 S.W. 826); and (3) money for relief of distress due to general unemployment or other unusual conditions (see 73 A.L.R. 699).

            "After a thorough consideration of the act, and its relation to Art. VIII, § 5, of our constitution, we hold that the act does not violate the provision of the section just mentioned."  (Emphasis supplied.)  (35 Wn. (2d) 31.)

            So again we find a declaration of the public purpose rule announced in the Morgan case.

            We think it now settled, by the Gruen case, that Article VIII, § 5, of the Washington constitution only withdraws from the state the power of suretyship and that such does not prohibit the state from granting funds to a private individual in the execution of a public purpose.

            Certain decisions of the Illinois court are also particularly helpful; for § 20 of Article IV of the Illinois constitution is similar in effect to § 5, Article VIII of our constitution.  That section of the Illinois constitution provides:

            "The state shall never pay, assume or become responsible for the debts or liabilities of, or in  [[Orig. Op. Page 12]] any manner give, loan or extend its credit to or in aid of any public or other corporation, association or individual."

            In response to an argument that the Illinois State Grant Act of 1947 violated the above section of the Illinois constitution, the court said in Cremer v. Peoria Housing Authority, 399 Ill. 579, 78 N.E. (2d) 276 (1948):

            ". . .As frequently announced, this section does not prohibit appropriations of State funds to private corporations or individuals where the money appropriated is to be spent for a public purpose. . . .

            ". . . The complaint of plaintiffs is that a private corporation and certain individuals are benefited, that the classification of beneficiaries is arbitrary and unreasonable and that the Peoria Housing Authority did not receive a cash or otherwise valuable consideration from the defendant nonprofit corporation.  Since the public generally will benefit from the resultant alleviation of the housing shortage, within limits not transgressed here, benefits which are not direct to the private corporation or individual concerned but merely incidental to the public purpose of the statute do not render the legislation invalid. . . ." (Emphasis supplied.)

            See also Krebs v. Board of Trustees, 410 Ill. 435, 102 N.E. (2d) 321 (1951); Hagler v. Small, 307 Ill. 460, 138 N.E. 849 (1923).

            We believe it is settled, by the foregoing cases of this and other jurisdictions that a legislative program having a public purpose is not vitiated merely because it involves, incidentally, benefits to private individuals.

            Therefore, we conclude that § 5 of Article VIII of the Washington constitution is not a prohibition to the scholarship program you propose.

            While we think that the limits and meaning of § 5 of Article VIII of the Washington constitution have now been clearly defined by the court's latest decision in Gruen v. State Tax Commission, supra, we will concede that there is some language in the earlier cases of Morgan v. Dept. of Social Security, supra, and State v. Guaranty Trust Co., supra, which is confusing.  Before passing, we should observe that the confusion therein resulted from our court's reading §§ 5 and 7 of Article VIII of the Washington constitution together.  They are obviously different:

             [[Orig. Op. Page 13]]

            "The credit of the state shall not, in any manner be given or loaned to, or in aid of, any individual, association, company or corporation."  Article VIII, § 5, Washington state constitution.

            "No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation."  Article VIII, § 7, Washington state constitution.

            While § 5, above, merely prohibits the state from giving or loaning its credit, § 7, above, prohibits a municipal corporation from giving or loaning its money, property, or credit.

            Years ago the court interpreted § 7 in the case of Johns v. Wadsworth, 80 Wash. 352, 141 Pac. 892 (1914), saying therein:

            "The section of the constitution last quoted, in most express terms, prohibits a county from giving any money, property or credit to, or in aid of, any corporation, except for the necessary support of the poor and infirm.  If the framers of the constitution had intended only to prohibit counties from giving money or loaning credit for other than corporate or public purposes, they would doubtless have said so in direct words.  That agricultural fairs serve a good purpose is not questioned, but the constitution makes no distinction between purposes, but directly and unequivocally prohibits all gifts of money, property, or credit to, or in aid of, any corporation, subject to the exception noted.  In Rauch v. Chapman, 16 Wash. 568, 48 Pac. 253, 58 Am. St. 52, 36 L.R.A. 407, after referring to § 7, art. 8, of the constitution, this court said that a recurrence to the history of the times will show that many municipalities have become bankrupt because of liabilities incurred in aid of railroads, 'and various other public improvements which were deemed advantageous' at the time. . . ."  (Page 354) (Emphasis supplied.)

            "Here the appropriation is to a private corporation organized for a worthy purpose, educational in its  [[Orig. Op. Page 14]] nature.  There is no room, however, for construction.  Unless plain, simple, direct words have lost their meaning, the legislature was without power to authorize the gift. . . ." (Page 355.)

            We find no quarrel with the Johns case, which is, indeed, persuasive; we note it merely to illustrate the plain distinction between §§ 5 and 7 of Article VIII, as illustrated by theJohns and Gruen cases, so that the confusion that has been manifested in the cases mentioned will not cloud consideration of the proposals at hand.

            (3)Class legislation‑-Equal protection.

            The program in question is for "deserving students who are without funds."  In other words, the program is for a particular class of students.  State legislation providing benefits for a particular class of persons is often attacked on the grounds of violating Article I, § 12, of the Washington constitution and/or the Fourteenth amendment of the Federal constitution.

            Article I, § 12, of the state constitution provides:

            "No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations."

            This section and the equal protection clause of the Fourteenth amendment of the Federal constitution are substantially the same.  Texas Co. v. Cohn, 8 Wn. (2d) 360, 112 P. (2d) 522 (1941).

            However, the constitutional ban against class legislation applies to that which classifies in an unreasonable, arbitrary, and capricious manner; the legislature may discriminate between citizens or class of citizens if such is reasonably related to the general welfare.  State ex rel. Case v. Howell, 85 Wash. 281, 147 Pac. 1162 (1915); In re Synder, 93 Wash. 59, 160 Pac. 12 (1916); Griffin v. Illinois, 351 U.S. 12, 100 L.Ed. 891, 76 S.Ct. 585 (1956); see also Gruen v. State Tax Commission, supra.

            We find nothing wrong with the legislature's limiting the program to those who are "deserving" and determining those by such standards as ability, character and need.  And, we note again that the program must be based on need; for without need there is no public purpose and the program would run afoul of those principles discussed under (1) above.

            In our opinion, classification such as this is as reasonable as that made in the program concerned in the cases last cited above.

             [[Orig. Op. Page 15]]

            (4) Aid to sectarian purposes.

            We concluded above that the first three proposals were a violation of the constitutional prohibition against use of public money or property in aid of sectarian purposes.  Those three proposals contained a common factor causing each to violate this constitutional prohibition.  While the remaining proposals do not contain that factor, nevertheless, we should consider whether any of the remaining proposals might likewise fall within this prohibition.

            For convenience in reading, we again set forth in part the applicable provisions of our state constitution:

            ". . . No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment. . . ."  (Emphasis supplied.)  Article I, § 11, as amended by the 4th amendment.

            "All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence."  Article IX, § 4.

            "Fourth.  Provision shall be made for the establishment and maintenance of systems of public schools free from sectarian control which shall be open to all the children of said state."  Article XXVI.

            The remaining proposals provide public funds either through state supported institutions or directly to the individual students; some of the proposals providing funds directly to individual students further provide that the funds be used at state supported schools while other proposals further provide that the funds be used atany school in this state, which includes, of course, sectarian institutions.  We think it is obvious that the instant prohibition poses no problem in regard to these proposals providing public funds for use at state supported institutions.  But, perhaps, we should elaborate on those proposals wherein funds are provided directly to students, who then select the school of their choice, which may be sectarian.

            It appears that the proposal now in question, like many other programs providing grants of public funds, contemplates complete, outright grants to the individual students.  From this we assume that the grants contemplated are to be designed so as to divest the state of ownership interest in the funds granted.  If such is the case, we think it obvious that the funds become private funds and thereby are no longer within the constitutional prohibition against use of public funds for sectarian purposes.

             [[Orig. Op. Page 16]]

            Our court has not had occasion to rule on the particular legal question herein considered.  Perhaps the best way to illustrate the validity of our conclusion thereto is to trace the opposing alternative, that the instant program falls within the constitutional prohibition at hand, to its ultimate result.

            Article I, § 11, above, is extremely broad; it applies to all religious establishments, not merely schools.  If that constitutional provision applies to the instant program, it likewise applies to other state programs granting funds to individuals such as the child welfare, mothers' pension, public assistance, and veterans' bonus programs.  No one can doubt that some of the funds of these programs are in turn given by recipients to churches, or that some welfare funds are spent for care at sectarian rest homes, or that some veterans' bonuses are spent for education at sectarian school.  Are all these and similar programs that may arise unconstitutional because of the prohibition in question?  Attacks on the constitutionality of the mothers' pension, public assistance, and veterans' bonus programs have been made.  See In re Synder, supra; Morgan v. Department of Social Security, supra; Gruen v. State Tax Commission, supra.  In each case the court upheld the particular program in issue.  However, the attacks on those programs were based on constitutional provisions other than those now in question.  Since counsel in those cases did not raise the particular constitutional argument now considered, and since the court will not raise additional constitutional questions on its own motion, the cases referenced are not dispositive of the instant problem.  But we think the cases are highly significant in that the many able counsel who contested those programs did not think it worthwhile even to raise the contention that those programs were within the prohibition at hand.

            Since, as we noted above, our court has not had occasion to rule on the particular legal issue now considered, we cannot categorically declare that the proposals in question are without the constitutional prohibition against use of public funds for sectarian purposes.  However, it is our carefully considered opinion that such proposals are not unconstitutional because of the prohibition.

            We have not overlooked the case of Almond v. Day, 197 Va. 419, 89 S.E. (2d) 851 (1951), which may appear, at first blush, to be authority contrary to our position.  However, that case is contrary on some legal principles to the position adopted by our own court in prior cases; and we think the rationale of the case is, at best, highly dubious.

            In addition to the foregoing state constitutional provisions, we should consider certain provisions of the Federal constitution which may appear applicable in regard to the principle at hand.

             [[Orig. Op. Page 17]]

            The First amendment to the Federal constitution provides:

            "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

            The United States supreme court has ruled that the First amendment is applicable to the states by virtue of the Fourteenth amendment.  Everson v. Board of Education, 330 U.S. 191 L. Ed. 711 (1947).

            Even so, we think it clear by the Everson case and the case of Cochran v. Louisiana, 281 U.S. 370 (1930), that the Federal constitution would not bar the program you present.

            In the Cochran case, the court upheld the validity of the Louisiana free school book program, under which books were furnished to all children, whether attending public, private, or parochial schools.

            In the Everson case, the court upheld the validity, under the Federal constitution, of a New Jersey law authorizing district boards of education to provide transportation for pupils to and from all schools other than private schools operated for profit; and the court approved the action of a board in reimbursing the parents of children for fares paid for transportation by public carrier to and from parochial schools.  In holding that the expenditures of public funds did not constitute a forbidden aid to religion, the court said at 330 U.S. 15:

            "The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church.  Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . . No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. . . .

            "We must consider the New Jersey statute in accordance with the foregoing limitations imposed by the First Amendment.  But we must not strike that state statute down if it is within the state's constitutional power even though it approaches the verge of that power.  See Interstate Consolidated Street Ry. Co. v. Commonwealth of Massachusetts, Holmes, J., supra 207 U.S. at 85, 88,  [[Orig. Op. Page 18]] 28 S.Ct. 26, 27, 28, 52 L.Ed. 111, 12 Ann.Cas. 555.  New Jersey cannot consistently with the 'establishment of religion' clause of the First Amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church.  On the other hand, other language of the amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion.  Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Nonbelievers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.  While we do not mean to intimate that a state could not provide transportation only to children attending public schools, we must be careful, in protecting the citizens of New Jersey against state‑established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general state law benefits to all its citizens without regard to their religious belief.

            "Measured by these standards, we cannot say that the First Amendment prohibits New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools.  It is undoubtedly true that children are helped to get to church schools.  There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets when transportation to a public school would have been paid for by the State.  The same possibility exists where the state requires a local transit company to provide reduced fares to school children including those attending parochial schools, or where a municipally owned transportation system undertakes to carry all school children free of charge.  Moreover, state‑paid policemen, detailed to protect children going to and from church schools from the very real hazards of traffic, would serve much the same purpose and accomplish much the same result as state provisions intended to guarantee free transportation of a kind which the state  [[Orig. Op. Page 19]] deems to be best for the school children's welfare.  And parents might refuse to risk their children to the serious danger of traffic accidents going to and from parochial schools, the approaches to which were not protected by policemen.  Similarly, parents might be reluctant to permit their children to attend schools which the state had cut off from such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks.  Of course, cutting off church schools from these services, so separate and so indisputably marked off from the religious function, would make it far more difficult for the schools to operate.  But such is obviously not the purpose of the First Amendment.  That Amendment requires the state to be a neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary.  State power is no more to be used so as to handicap religions, than it is to favor them."  (Emphasis supplied.)

            We see no other significant constitutional arguments regarding the last seven proposals; and finding none of those considered herein valid, it is our opinion that these proposals are constitutional.

            We trust the foregoing will be of assistance.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP R. MEADE
Assistant Attorney General

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