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192
S.E.2d 202
259
S.C. 409
(Cite
as: 192 S.E.2d 202)
Supreme
Court of South Carolina.
William
S. DURHAN, jr., for himself and all Other
Taxpayers
of the State of
South
Carolina, Appellants,
v.
Daniel
R. McLEOD as attorney General of the State of
South
Carolina et al.,
Respondants
No.
19509
October
26, 1972.
Taxpayer
brought action for declaratory judgment, challenging constitutionality
of act which authorizes state agency to make, insure or
guarantee loans to students to defray their expenses at
any institution of higher learning. The Common Pleas Court,
Richland County, George T. Gregory, Jr., J., rendered judgment
from which taxpayer appealed. The Supreme Court held that
the act did not violate constitutional provision which prohibits
the use of property or credit of the state directly or indirectly
in aid of any church controlled college or school, since
the student loan fund was a trust fund, established by issuance
of bonds payable solely from loan payments, grants, and
revenues earned by the agency, and thus no 'public money
or credit' within the meaning of the constitutional provision
was involved, and since the loans were to students attending
all institutions of higher learning, whether public or private
and sectarian or secular; and that, for the latter reason,
the act likewise did not violate the establishment clauses
of the State and Federal Constitutions.
Affirmed.
West
Headnotes
[1]
Colleges and Universities 2
81k2
Most Cited Cases
[1]
Constitutional Law 84.5(6)
92k84.5(6)
Most Cited Cases
(Formerly
92k84)
Act authorizing state agency to make, insure or guarantee
loans to students at any institution of higher learning
did not violate constitutional provision which prohibits
the use of property or credit of the state directly or indirectly
in aid of any church controlled college or school since
the loan fund was a trust fund, established by issuance
of bonds payable solely from repayment of loans, grants,
and revenues earned by the agency, and thus did not constitute
"public money or credit" within meaning of the constitutional
provision, and since all institutions of higher education,
public or private and sectarian or secular, were eligible.
Const. art. 11, § 9; Act June 15, 1971, 57 St. at Large,
p. 775.
[2]
Colleges and Universities 2
81k2
Most Cited Cases
[2]
Constitutional Law 84.5(6)
92k84.5(6)
Most Cited Cases
(Formerly
92k84)
Act
authorizing state agency to make, insure or guarantee loans
to students at any institution of higher learning did not
violate the establishment clauses of the State and Federal
Constitutions since it was scrupulously neutral between
religion and irreligion and as between various religions,
making students at all institutions of higher learning eligible
to receive such loans. Act June 15, 1971, 57 St. at Large,
p. 775.
[3]
Constitutional Law 84.1
92k84.1
Most Cited Cases
(Formerly
92k84(1), 92k84)
To
avoid violation of establishment clauses of State and Federal
Constitutions, statute must have a secular legislative purpose,
its principal or primary effect must be one that neither
advances nor inhibits religion, and it must not foster an
excessive government entanglement with religion.
[4]
States 119
360k119
Most Cited Cases
Act
authorizing state agency to make, insure or guarantee loans
to students who are residents of South Carolina for attendance
at any institution of higher learning, whether in South
Carolina or elsewhere, rested upon a valid public purpose,
the promotion of higher education in the state, and thus
was not subject to challenge on theories that it improperly
authorized use of public funds for private purposes and
improperly authorized use of public funds for the benefit
of out-of-state institutions. Act June 15, 1971, 57 St.
at Large, p. 775.
[5]
Colleges and Universities 2
81k2
Most Cited Cases
[5]
Constitutional Law 242.2(6)
92k242.2(6)
Most Cited Cases
(Formerly
92k229(1))
[5]
Constitutional Law 281.5
92k281.5
Most Cited Cases
(Formerly
92k283)
Plaintiff
first alleges that the Act violates Article XI, Section
9 of the Constitution of South Carolina, which prohibits
the use of the 'property or credit' of the State, 'directly
or indirectly' in aid of any church controlled college or
school. In Hartness v. Patterson, 255 S.C. 503, 179 S.E.2d
907 (1971), we held that tuition grants to students attending
independent institutions of higher learning amounted to
aid to these institutions in violation of the section here
relied upon.
But the clear purpose of that Act was to aid 'independent
institutions of higher learning' as defined, of which sixteen
out of a total of twenty-one which qualified were church
supported. The direct tuition grants were, of course, of
public money, and our conclusion that the Act violated Article
XI, Section 9 was inevitable. In this case, the emphasis
is on aid to the student rather than to any institution
or class of institutions. All which provide higher education,
whether public or private, sectarian or secular, are eligible.
The loan is to the student, and all eligible institutions
are as free to compete for his attendance as though it had
been made by a commercial bank. This is aid, direct or indirect
to higher education, but not to any institution or group
of institutions. Even if it were conceded that the loan
fund is public money within the meaning of Article XI, Section
*204 9, it would require a strained construction to hold
that participation by students attending Wofford, Furman,
and like institutions, as well as by those attending the
University of South Carolina, Clemson University and the
like, offends this constitutional restriction.
However, we think it clear that the student loan fund under
the Act is held by the Authority as a trust fund, and that
no public money or credit, within the meaning of Article
XI, Section 9, is employed in making or guaranteeing loans.
Cf. Elliott v. McNair, 250 S.C. 75, 90, 156 S.E.2d 421,
429 (1967).
The
complaint next alleges that the Act violates the establishment
clauses of the Constitution of South Carolina and that of
the United States. We find no merit in this claim. The Act
is scrupulously neutral as between religion and irreligion
and as between various religions. It simply aids and encourages
South Carolina residents in the pursuit of higher education,
and leaves all eligible institutions free to compete for
their attendance and dollars, neither advantaged or disadvantaged
by the operation of the Act. If, on the other hand, sectarian
schools had been excluded from the category of eligible
institutions, such schools would have been materially disadvantaged
by the intervention of the State's loan program.
We
follow plaintiff's brief in quoting the applicable criteria
from Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29
L.Ed.2d 745 (1971): 'Every analysis in this area must begin
with consideration of the cumulative criteria developed
by the Court over many years. Three such tests may be gleaned
from our cases. First, the statute must have a secular legislative
purpose; second, its principal or primary effect must be
one that neither advances nor inhibits religion, Board of
Education (of Central School District No. 1) v. Allen, 392
U.S. 236, 243, 88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060 (1968);
finally, the statute must not foster 'an excessive government
entanglement with religion.' . . .' 403 U.S. at 612--613,
91 S.Ct. at 2111. Plaintiff concedes the Act's compliance
with the first and third criteria. What has already been
said sufficiently demonstrates its compliance with the second.
The
remaining grounds of challenge to the Act are (1) that it
improperly authorizes the use of public funds for private
purposes; (2) that it improperly authorizes the use of public
funds for the benefit of out-of-state institutions; and
(3) that it deprives plaintiff of due process and equal
protection of the laws. All of these objections are met
when we recognize, as we must, that the Act rests upon a
valid public purpose, I.e., the promotion of higher education
in the State; and that all of its provisions are reasonably
related to this purpose.
Affirmed.
S.C.
1972.
Copr.
© West 2002 No Claim to Orig. U.S. Govt. Works
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