Montana Attorney General Opinion 15-71

Opinion No. 71 Schools-FI'ee Text Books-Taxat.ion- Constitutional I..aw. HELD: A law requiring the fur- nishing of free text books to the pupil" of all schools, Jluhlic or prh'ate, is \'nlid since it does not viola te either 58 OPI~IOXS OF THE ATTORXEY GEXERAL Sec. 8, Art. XI, or Sec. 35. Art. V of the Constitution of :\iontana, nor is taxuUon for thu t pm'pose a taking of pril'ate property for a private use. February 9, 1933. You ha\'e requested my opinion as to the constitutionality of a bill proposed, requiring the furnishing of fl'ee text books ·to the pupils of all schools, pub- lic or private. This question involves an interpretation of Section 8 Article XI of the Montana Constitution, which provides, inter alia, that no school dis- trict shall ever make directly or in- directly any appropdation, or "pay from any public fund or moneys what- ever .. .. .. for any sectarian pur- pose, or to aid in the support of any school, academy, seminary .. .. .. controlled ill whole or in part by any church, sect, or denomination what- ever." Section 35, Article V of the Consti- tution of Montana provides: "No ap- propriation shall be made for charita- hIe, industrial, educational or benevo- lent purposes to any person, corpora- tion or community not under the abso- lute control of the state, nor to any de- nominational or sectarian institutions or association." We have been able to find only three ('ases touching this question. This (Juestion was considered in the case of Borden v. Louisiana State Board of l'~ducation, 168 La. 1005, 123 Southern 655, wherein it was held that a similar law did not offend against such con- Rtitutional prOVISIOns. A quotation from such decision shows that the con- stitutional provisions in the Louisiana Constitution are yery similar to those in the Montana Constitution. "Section 8 of Article 4 prOhibits, among other things, the taking of money from the public treasury, di- rectly or indirectly, in aid of any priest, preacher, minister or tencher of religion ns such, or for private, chari- table, or beneyolent purposes to any person or community excepting cer- tain institutions conducted under state nuthority. Section 4 of Article 1 re- la'tes to the right to worship God ac- cording to the dictates of one's own conscience, and prohibits the passage of laws establishing religion, or the free exercise thereof, or the granting of preferences to, or making discrim- infitions against any church, sect, or relib'ious creed. Section 13 of ArUcle 12 prohibits the using of public funds for the support· of any prh'ate or sec- tarian school. Section 12 of Article 4 prohibits among other things, the lending, pledging, or granting the funds, credit, property, or things of "alue of the state or of nny political corporation thereof to or for any per- son or persons, association, or corpor- ation. public or private." (Borden v. Louisinna State Board of Education. 123 Southern, page 660). The cnse of Cochrnn v. Louisiana State Board of Elducation, 281 U. S. 370. another case which was a compan- ion case to the above LOuisiana case, was 'taken to the Supreme Court of the United States to test out. whether or not such a lending of text books was a public purpose, it being contended that taxation for that purpose "'ns the tak- ing of pri\'ute property for private uses. This may have been prompted hy the dissenting opinion in the Borden cnse. 'l'he Supreme Court of the Unit- ed States very definitely settled the proposition that it was a public pur- pose when it said: "Viewing the statute as having the effect thus attributed to it, we can not doubt ·thnt the taxing power of the state is exerted for a public pu!'- pose. The legislation does not segre- ga·te prixate schools, or their PUl)ils, as i.ts beneficj.aries or attempt to in- terfere with any matters of exclusiYe- ly pri\·fl'te concern. Its interest is ed- ucation, broadly; its method, compre- hensive. Individual interests are aid- ed only as the common interest is safeguarded." It quoted with approval the following from the Louisiana case: "'1'he appropriations were made for the specific purpose of purchasing school books for the use of the school children of the state, free of cost to them. It was for their benefit and the resulting benefit to the state that .the appropriations were made. True. these children attend some school, public or prh'ate, sectarian or non- sectarian, and that the books are to be furnished them for their use. free of cost, whichever they attend.' '1'lIe schools, however, are not the benefici- aries of these appropriations. '1'hey OPINIONS OI!' THE ATTORNEY GENERAL 59 obtain nothing from them, nor are they relie\'ed of a single oblil,"lltion because of them. The school children and the state alone are the beneficiar- ies. It is also true that the sectarian schools, which some of the children attend. instruct their pupils in reli- gion, and books are used for that pur- pose, but one may search diligently the acts, though without result, in an effort to find anything to the effect that it is the purpose of the sta'te to furnish religious books for the use of such children." Chief .Justice Hughes wrote the opin- ion and the court unanimously agreed. The only contrary case is that of Hmith v. Donohue, 195 N. Y. Supp. 715. 'l'his case, however, is not strong au- thority for the reason thM the discus- !'ion concerning cOllstitutionality is purely obiter dicta. The court specifi- ('ally held that the statute in question did not purport to furnish any free text 'hooks ,to children in private schools. 'l'herefore, its remarks on the subject of constitutionality, under the settled rules of judicial construction, are to he .accorded little weight. A further fact in conSidering the weight of opin- ion is that the court was not a court of la·st resort in New York state upon the question of law. Roth the Louisiana case and the case in the Supreme Court of the United Hta tes point out that it is only the use of the books granted to the children and not that there is any gift. Reas- oning from analogy it might be said thM if the state cannot lend text books to students in private schools, by a pa rity of reasoning it could not create 01' maintain a library, the historical libl'Ury, for instance, and permit stu- dents of pri\'ate intsitutions to borrow the books for use in their studies. 'l'aking the only three cases in which the mil tter has been diL'ectlv involYed. it is the undoubted weight of authol·ity that snch an act is constitutional.