Fiscal Court of Jefferson County v. Brady

LEIBSON, Justice. Appellees are taxpayers and residents of Jefferson County, Kentucky, who challenge grants now being made by the Fiscal Court from county tax revenues by direct payment to certain specified privately-owned schools. These payments are designated as school transportation subsidies. The private schools that received a transportation subsidy from Fiscal Court in the 1992-93 fiscal year are specified in the appropriation as follows: [[Image here]] Appellees claim these payments (1) exceed the statutory authority of Fiscal Court as specified in KRS 158.115 and 67.080 and (2) violate the Kentucky Constitution, Sections 3, 5,171,184,186 and 189. The final judgment of the Jefferson Circuit Court found both statutory and constitutional violations have occurred, and ordered that “Fiscal Court must immediately cease providing direct aid to nonpublic schools.” Fiscal Court appealed, and because this is a matter of general public importance requiring prompt final resolution, we granted Fiscal Court’s motion to transfer the appeal to our Court. For reasons to be stated, we affirm the tidal court. In Sherrard v. Jefferson County Board of Education, 294 Ky. 469, 171 S.W.2d 963 (1942), our Court held the Jefferson County Board of Education could not provide private school pupils the same transportation rights as public school pupils without violating the prohibitions in the Kentucky Constitution (1) against using tax money “raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters,” Sec. 184, and (2) against taxes being “levied and collected” for other than “public purposes,” Sec. 171. Thereafter the General Assembly enacted KRS 158.115 to permit counties, if they choose to do so, to establish an alternative source of funds for transportation for “all pupils,” public and nonpublic alike. KRS 158.115(1) provides “[e]ach county may furnish transportation from its general funds ... to supplement the present school bus transportation system for the aid and benefit of all pupils of elementary grade [and ‘any pupil of any grade’] attending school in compliance with the compulsory school attendance laws of the Commonwealth of Kentucky who do not reside within reasonable walking distance of the school they attend and where there are no sidewalks along the highway they are compelled to travel.” KRS 158.115(2) then provides: “Each county may provide transportation by means of local board of education operated transportation systems, transit authorities organized and operating pursuant to KRS Chapter 96A, local governmental mass transit systems, and individual contracted buses and vehicles.”1 KRS 158.115 was upheld as constitutional in Nichols v. Henry, 301 Ky. 434, 191 S.W.2d 930 (1946), as “an exercise of police power for the protection of childhood against the inclemency of the weather and from the hazards of present-day highway traffic.” Id., 191 S.W.2d at 932. Rawlings v. Butler, Ky., 290 S.W.2d 801 (1956), upheld a. Nelson County Fiscal Court payment to the County — 683 — School Board of a supplement sufficient to cover the “per capita” cost of transporting parochial school children on the same buses used by the school board in its school board transportation system for public school children, as within the holding in Nichols v. Henry, supra. The question in the present case is whether the means now being used by the Jefferson Fiscal Court to make payments to private and parochial schools falls within the statutory and constitutional parameters established by Nichols and Rawl-ings. The trial court has held it does not. Jefferson County Fiscal Court began allocating monies from general funds in 1959 to defray transportation costs in nonpublic schools. Originally this subsidy was paid directly to the Board of Education of Jefferson County under an agreement whereby nonpublie school pupils were transported on buses owned and maintained by the Board of Education. In the mid-1970’s the advent of public school desegregation made it no longer practicable for the school board to provide such transportation to nonpublic school pupils. Fiscal Court then began paying transportation subsidies directly to nonpublic schools which provided students with a means of transportation. Then in 1983 the Board of Education eliminated transportation for public school pupils enrolled in certain “optional instructional programs” outside the pupils’ regular and/or desegregation school attendance district. The Jefferson County Parents and Teachers Association (JCPTA) asked Fiscal Court to assume this burden and Fiscal Court responded by assuming the burden for these optional instructional programs along with its nonpublic school transportation subsidy. Commencing in 1987, cutbacks in funds available to the County from federal revenue sharing reduced the County’s budget by 10.4%, and the County in turn cut the transportation subsidy by the same amount. The County considered entirely eliminating the transportation subsidy, and then instead, over time, (1) eliminated, the public school subsidy for optional instructional programs and (2) limited the subsidies for nonpublic school transportation to schools where the average tuition charged each pupil did not exceed $3,000 per year. Beginning in fiscal year 1992/93 Fiscal Court no longer allocated any funds for the transportation of school students in public programs, and this lawsuit followed. Fiscal Court maintains that public school pupils receive “adequate” transportation through the tax resources of the local Board of Education; that the controlling statute, KRS 158.115, should be interpreted to permit Fiscal Court discretion to allocate funds solely to nonpublic schools as the best use of “scarce county tax revenues” available for school transportation purposes. The appel-lees argue the critical language in KRS 158.115 authorizes county fiscal courts “to supplement the present school bus transportation system for the aid and benefit of all pupils,” or as elsewhere stated, “for the aid of any pupil of any grade who does not live ■within reasonable walking distance,” etc. (Emphasis added). Here the supplement is intended to benefit only selected pupils. In Rawlings v. Butler, supra, the Nelson County Board of Education’s public school transportation budget was supplemented with an amount sufficient to cover the additional cost of transporting parochial school pupils “to protect all children from the hazards of the highway who under our compulsory attendance law were forced to attend school.” Id. at 807. The trial court believed the present case differs fundamentally fi’om Nichols and Rawlings because of the “means” used to supplement the transportation expense in this case. The trial court held that, when Fiscal Court makes payment directly to the account of the nonpublic school, “since Fiscal Court loses all control of the funds allocated ... it [the expenditure] must be characterized as direct aid” to private schools rather than simply paying the transportation expense of the children involved. There are at least five problems with the way these subsidies are presently being made: 1) The money is paid over directly into the general funds of the private or parochial schools receiving payment. Only selected nonpublic schools enjoy the benefit of Fiscal Court’s appropriation. The bulk of it ($455,- — 684 — 642 of $468,256) is to be paid to the “Office of Catholic Schools.” The trial court stated that “since Fiscal Court loses all control of the funds allocated to the nonpublie schools, it must be characterized as direct aid” to the recipient institution. After payment, the manner in which the money is expended is controlled solely by the recipient school. Presumably Fiscal Court, if it chooses to do so, could investigate how the money is actually spent, with a view towards deciding next year’s allocation. But the trial court noted that if Fiscal Court were “to examine yearly the expenditures of the nonpublic schools on their transportation program ... [such oversight] could, quite easily, lead to excessive entanglement” with the religious institutions. involved. 2) No money is now being expended on public school children for the optional instructional programs. Fiscal Court believes public school transportation needs are “adequately” provided for by the Jefferson County Board of Education through the funds raised to append public education. But ap-pellees argue the public schools have an equal or greater need for transportation supplements than the private schools who are benefited, that public schools and public school transportation is not presently sufficiently funded by the school board to fully provide for the needs of public school pupils, and that if a county fiscal court elects to use KRS 158.115, it must do so in a way that provides a transportation benefit to “all pupils” rather than selected pupils. 3) The method for allocating money to the private schools depends upon application for a grant in which the applicant establishes (1) that the school involved provides its own means of transportation and (2) that the tuition charge is $3,000 or less. Thus (1) the recipient school actually controls the right to receive the allocation by deciding on the tuition it charges, and (2) there is no necessary correlation with either the financial resources actually available to the pupil who pays tuition or with the pupil’s ability to provide for his or her own private transportation. 4) If transportation is considered to be solely a public health and safety measure for the protection of the school child rather than a supplement to the budget of the institution, the present system provides or withholds protection for nonpublic school children depending on which school they elect to attend. The appellees argue that no nonpublic school child’s transportation should be subsidized because, viewed solely as a public health and safety measure, all school children may obtain subsidized transportation within the public school system simply by attending public school. 5)The present payment method contravenes subsection (2) of KRS' 158.115 because none of the means for supplementing school bus transportation specified in subsection (2) are utilized. While we respect the reasons behind the decision of the Jefferson County Fiscal Court to selectively fund the budget of certain specified nonpublic schools to assist them in the payment of their transportation expense, we agree with the trial court that the funding here is fundamentally different from Nichols v. Henry, and Rawlings v. Butler, supra. These cases involved payment to the local board of education, a public institution, supplementing the local board’s transportation system so that the transportation needs of students attending sectarian schools would be addressed within the concept of protecting “all” students “against the inclemency of the weather and from the hazards of present-day highway traffic.” Nichols v. Henry, as quoted supra. Here the private schools combine their own independently generated funds with Fiscal Court’s subsidies, and then control how the money will be spent on transportation. In Fannin v. Williams, Ky., 655 S.W.2d 480 (1983), the state was providing textbooks for use in nonpublic schools. We concluded, “reluctantly, that regardless of its salutary purpose” the method used to assist nonpublic schools violated § 171 of the Kentucky Constitution which specifies that “taxes shall be levied and collected for .public purposes only.” The payments being made here to nonpublic schools falls under the same constitutional prohibition. By the same token it violates KRS 67.080(1) which provides that county funds may be appropriated, but only “for lawful purposes.” — 685 — In Fannin v. Williams, we noted the difference between the fact situation presented and the situation presented in Board of Education v. Allen, 392 U.S. 286, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), where the U.S. Supreme Court held the book distribution scheme employed did not violate the “establishment of religion clause in the First Amendment”: “The book distribution scheme there [Board of Education v. Allen ] was based on requests for text books filed by individual-students while the distribution scheme here is based on a request by the chief administrator of each eligible school.” Fannin v. Williams, 655 S.W.2d at 483. Here, also, we note that financial aid is provided to the school rather than a transportation service to the child. There is a fundamental difference between providing school transportation to nonpublic school children along with public school children through Fiscal Court appropriation to the board of education, and providing direct payment to selected eligible schools. The appellant has argued that Fannin v. Williams recognizes that public transportation may be provided to nonpublic school children, and so it does, but not by payment of public funds to supplement the budget of private institutions. “The essence of the child benefit argument is that the aid provided flows directly and exclusively to the child and only indirectly, if at all, to the parochial school.” Fannin, 655 S.W.2d at 483. This is not the essence of the present direct payment scheme. When the payment is made directly to the nonpublic school, § 184 of the Kentucky Constitution, which provides that public money cannot be expended for education other than in common schools without a vote of the people, is violated, because public money is being expended for the benefit of the private institution rather than providing specifically for the health and safety of all children. Moreover, the statute in question, KRS 158.115, contemplates transportation furnished by Fiscal Court to “all pupils” equally. It does not contemplate furnishing transportation selectively to some pupils and not others, nor does it contemplate direct payment to the general funds of private institutions. Subsection (1) specifically refers to payments “to supplement the present school bus transportation system for the aid and benefit of all pupils,” and subsection (2) specifies the “means” by which the county may provide such transportation, as quoted supra. None of these “means” bears any similarity to the means Fiscal Court has utilized here without statutory authorization. The appellant argues that because subsection (2) uses “may” in describing the means rather than “shall” or “must” it contemplates the use of other means as well. KRS 446.010(20) provides that “may” as used in Kentucky statutes is permissive and this is true except where the context requires otherwise. See Smith v. Wilson, Ky., 269 S.W.2d 255, 256 (1954). We think the statute used “may” because the statute permits county fiscal courts to “supplement the present school bus transportation system,” but does not require them to do so. We need not decide whether the means listed in subsection (2) is literally exclusive, because it is clear, at the least, that the list provided contemplates utilizing existing governmentally operated transportation systems or gov-ernmentally contracting for the service, rather than direct payment to private institutions. The general principles of statutory construction, “ejusdem generis ” and “expres-sio unius est exclusio alterius ” apply. “It is a primary rule of statutory construction that the enumeration of particular things excludes the idea of something else not mentioned.” Smith v. Wedding, Ky., 303 S.W.2d 322, 323 (1957). On “ejusdem generis ” and “expressio unius est exclusio alterius” as primary rules of statutory construction, see also, Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387 (1940), and Jefferson County Fiscal Court v. Jefferson County, 278 Ky. 68, 128 S.W.2d 230 (1939). The argument has been made that Fannin v. Williams is inapplicable because the decision addresses public support of private education by providing school books, rather than providing transportation. However, the record shows that the only direct effect of the cessation of public funds is to decrease the — 686 — general funds available to the school. This might adversely affect the school’s tuition, and perhaps its enrollment, by shifting additional financial burdens to the school, but it does not directly affect the transportation of any school child. In this respect the providing of funds for transportation expenses is no different than providing a salary supplement or a maintenance supplement to the school, or providing books to the school as in Fan-nin v. Williams. Fannin holds that private school instruction cannot be publicly aided: “In sum, the Kentucky Constitution contemplates that public funds shall be expended for public education. The Commonwealth is obliged to furnish every child in this state an education in the public schools, but it is constitutionally proscribed from providing aid to furnish a private education.” Id. at 484. We turn now to Sections of the Kentucky Constitution prohibiting support for sectarian or religious institutions in the name of education. Section 5 prohibits extending a “preference ... to any religious sect, society, or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity[.]” Section 189 provides: “No portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school.” Ninety-nine percent of Fiscal Court’s transportation subsidy is awarded to educational institutions that promote religious teachings and beliefs. Yet equivalent support for the public school optional educational programs is withheld. These Kentucky constitutional provisions appear to restrict direct aid from state or local government to sectarian schools much more specifically and significantly than the only counterpart provision in the Federal Constitution, which is the “establishment of religion” clause in the First Amendment. Thus we find the restrictions deemed to apply in the less restrictive context found in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), helpful in deciding how to apply our own state constitutional provisions.2 The United States Supreme Court struck down as unconstitutional a Pennsylvania statute allowing the state to provide funds directly to private schools to purchase “secular education services.” It specified a three-part test for testing a statute of this nature, against the “establishment of religion” clause in the First Amendment. The third prong of the test used in Lemon v. Kurtzman to strike the statute is that “the statute must not foster ‘an excessive government entanglement with religion.’ ” 403 U.S. at 613, 91 S.Ct. at 2111. Justice Black explained, in his concurring opinion: “... a grave constitutional decision [must not] turn merely on cost accounting and bookkeeping entries.... The school is an organism living on one budget. What the taxpayers give for salaries of those who teach only the humanities or science without any trace of proselytizing enables the school to use all of its own funds for religious training.... sophisticated attempts to avoid the Constitution are just as invalid as simple-minded ones.” 403 U.S. at 641, 91 S.Ct. at 2125. In Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977), the U.S. Supreme Court addressed the “establishment of religion” clause in the First Amendment of the United States Constitution, and held it was violated by statutory provisions pertaining to field trip services because the nonpublic school was the true recipient of the services and the public school authorities would be unable adequately to ensure secular use of the field trip funds without close supervision of the nonpublic institution, thus creating excessive church-state entanglement. The trial judge in the present case found this reasoning persuasive in applying § 5 of the Kentucky Constitution to the present case, and we agree. On the other hand, the trial judge believed that “[t]here is no clear violation of — 687 — Section 189 ... (because) taxes have not been raised for educational purposes but were taken from the general fund.” However, § 189 states in pertinent part that “[n]o portion of any fund or tax now existing,” as well as of any fund “that may hereafter be raised or levied for educational purposes, shall be appropriated to or used by or in aid of any church, sectarian or denomination school.” (Emphasis added). Because § 189 includes “any fund or tax now existing” as well as any tax “hereafter to be raised or levied for educational purposes,” we perceive § 189 as well as § 5 applying to the present circumstances. Therefore, for the reasons stated in this opinion, the judgment of the trial court is affirmed. STEPHENS, C.J., and SPAIN and STUMBO, JJ., concur. WINTERSHEIMER, J., dissents by separate opinion in which LAMBERT and REYNOLDS, JJ., join. Footnotes [1] The present method of direct payment by grants to private schools and school systems does not conform to any of the methods specified in subsection (2), which raises issues which we will discuss later in this opinion. [2] There is no Federal constitutional issue raised or decided in this case, either at trial or appellate level. We refer to decisions of the U.S. Supreme Court solely for their reasoning, and not as binding authority.