Opinion letter to Mr. William F. Moore

March 16, 1971 Mr. William F. Moore 4320 Bell Kansas City, Missouri 64111 Dear Mr. Moore : OPINION LETTER NO. 9 Answer by Letter (Bartlett) FILED q This letter is issued in response to your request for a ruling on the following question: "I would like to request an opinion from your office on the legality of public funds, Federal and State, supporting the bussing of private or parochial school students under any circumstance. " With reference to the use of federal funds for supporting the bussing of private or parochial school students in Missouri, you furnish us no factual situation upon which we can rule, nor do you refer us to any specific federal program providing such funds in Missouri. We are reluctant to hypothesize facts upon which to base an opinion in this area. Therefore, we decline to rule on what the result would be under the Missouri Constitution if there were a fe - deral plan authorizing moneys to be spent in this manner. With reference to the expenditure of state funds to support the bussing of private or parochial school students, the Missouri Supreme Court in McVey, et al v. Hawkins, 364 Mo. 44 , 258 S.W.2d 927 (1953) considered Missouri statutes then in effect which appeared to authorize the expenditure of public school moneys to defray the expense of transporting private school children to and from school. The Court concluded that such a use of public school moneys was not "for establishing and maintaining free public schools" as required by the Constitution : ''. • • if the use of the fund or any part thereof is not within the purpose for which it was dedicated and appropriated, the use must be enjoined and the transportation dis- continued." Id. at 932 . Honorable William F. Moore Later, the Court stated: " .•. We must and do hold that the public school funds used to transport the pupils part way to and from the St. Dennis Catholic School at Benton are not used for the purpose of main- taining free public schools and that such use of said funds is unlawful. It necessarily fol- lows that such transportation of said students at the expense of the district is unlawful and must be enjoined •••• " Id. at 933-934. Although the Court in the MaYJY case did not at any time use the term "unconstitutional", it 1 , by the language above quoted, directly hold that certain provisos of two Missouri statutes then in effect were in conflict with constitutional provisions. There- fore, the Court in effect held those provisos unconstitutional. For a detailed analysis of the McVay decision we are enclosing herewith a copy of Opinion No. 96, date August 25, 1953 , to the Honorable Hubert Wheeler. In addition to the analysis of the MdVey decision, the second question in this opinion is whether a boar of education would have any legal basis for aiding private school transportation, assuming that the statutory provisions then in effect were nullified by the ~cVey decision. The opinion concluded as follows with respect to th s question: "Therefore, in order to justify the expendi - ture of public funds for aiding private school transportation, boards of education must be able to point to some legislative enactment consonant with the provisions of the Constitution which authorize such ex- penditure. Since the only statutory provi- sions purporting to authorize the payment of public funds for this purpose have been held in violation of the Constitution, and consequently null and void, there is no legal basis for boards of education to provide assistance from public funds for transporta- tion of pupi ls to private schools whether they be elementary or high schools. " This office is aware of no language in any statute presently in effect in the State of Missouri which would authorize the expenditure of public funds for aiding private school transportation. Very truly yours, JOHN C. DANFORTH Attorney General Enclosure: No. 96, August 25, 1953, Wheeler.