February 9, 1976

Senator Harold Schreier
Flandreau
South Dakota 57802

OFFICIAL OPINION NO. 76-17

Use of state funds for matching dollars for federal school lunch programs at private non-sectarian schools and private sectarian schools

Dear Senator Schreier:

You have asked for the opinion of this office in regard to the use of funds appropriated by subsection (c) of section 15 of chapter 354 of the session laws of 1975. That subsection provides:

(c) The sum of four hundred ninety-six thousand eight hundred dollars ($496,800) for the state share of matching dollars for the federal school lunch program.

In regard to the above appropritation, you ask, can the state of South Dakota use any of the above appropriation for matching dollars for federal school lunch programs at private schools or private sectarian schools?

With respect to the question of use of state funds to match federal funds for a school lunch program at private sectarian schools, it is my opinion that the law in South Dakota forbids such an arrangement. I would refer you to the 1965-66 AGR 279, where the Attorney General discusses at length con­stitutional and statutory provisions as well as court decisions in South Dakota dealing with state aid to sectarian schools. Article VIII, section 16 of our constitution, alone, would appear to be a sufficient prohibition in regard to proposed grants of state money to sectarian schools. Article VIII, section 16 provides:

No appropriation of lands, money or other property or credits to aid any sectarian school shall ever be made by the state, or any county or municipality within the state, nor shall the state or any county or municipality within the state accept any grant, con­veyance, gift or bequest of lands, money or other property to be used for sectarian purposes, and no sectarian instruction shall be allowed in any school or institution aided or supported by the state.

With regard to the question of use of public funds to match federal dollars for school lunch programs for private non-sectarian schools, the answer is not clear since the constitutional prohibition of aid to sectarian schools does not apply. Although there is language in the above cited Attorney General Opinion at page 283, to the effect that public funds can not be used for students not enrolled in public schools, it appears to me that the Legislature could find such aid to be for a "public purpose" and thereby avoid the "public use" restrictions imposed by article XI, section 2 of our constitu­tion. There does not appear to me to be any other constitutional or statutory prohibition which would make this sort of assistance unlawful.

The cases which have been decided under article XI, section 2 show that there is a considerable amount of discretion placed in the Legislature to decide what is a "public purpose," and to use public funds for such pur­poses. The following quotations from the case of Torrigan v. Saunders, 97 N.W. 2d 586, 590 (1959) point clearly to the court's position in interpreting the "public purpose doctrine."

Generally, in connection with the validity of the expenditure of state funds, what is for the public good, or what is a public pur­pose, is a question for the Legislature to decide, with respect to which it is vested with a large discretion, which can not be con­trolled by the courts unless its action is clearly evasive.

The Legislature is vested with a large discretion which can not be controlled by the courts. If it does not clearly appear from the act and appropriation that it is for a purely private purpose, the court can not so decide. I f any reasonable doubt exists as to whether it is for a public or private purpose, the court must uphold the legislative act.

After the Legislature and the executive have both decided that the purpose for which a tax is laid is public, nothing short of a moral certainty that a mistake has been made can, in my judgment, war­rant the court in overruling that decision, especially when nothing better can be set up in its place than the naked opinion of the court as opposed to the character of the use proposed.

In the case of Torrigan v. Saunders, the court distinguished a previous deci­sion of the South Dakota Supreme Court, In re Opinion of the Judges, 240 N.W. 600. In that advisory opinion of the Supreme Court, the Court found that legislation which authorized feed loans to livestock raisers in distress was not a "public purpose" for which the Legislature could authorize an expenditure of public money. Thus, there does seem to be precedent for the Supreme Court reviewing the legislative decisions on "public purpose." The decision of the Legislature is not beyond review.

In view of the above analysis of authorities, it appears to me that the Legislature can provide public funds to support private non-sectarian schools if the Legislature clearly provides that the support of such educa­tional programs is a "public purpose." If this intent were clearly expressed, and handled in a reasonable manner, it would appear that under the stan­dards expressed in the Torrigan case, the court would not reverse the legislative finding.

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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