I dissent.
If an amendment of the constitution was necessary to authorize the legislature to provide for free text-books in the elementary schools, as would seem to be implied from the adoption of the amendment of 1912, expressly giving such authority (sec. 7, art. IX), I can see no reason why it is not also necessary in order to authorize the legislature to provide free text-books for the high schools for the use of the pupils therein. Both, alike, are gifts by the state to the pupil, or to the parents or guardians of the pupil, of the use of *Page 507 the text-books during the attendance at school, and both are, therefore, gifts of a "thing of value" to an individual. As such it is expressly forbidden by section 31 of article IV of the constitution. If the prevailing opinion is correct, the submission by the legislature and the adoption by the people of the free text-book amendment of section 7, article IX, in 1912, was a vain and useless performance.
There is not, as it seems to me, any force in the suggestion that providing free text-books to a high school pupil is no more a gift than is the providing of buildings and the furniture, fixtures, and appliances therein which are reasonably necessary to carry on the schools. The constitution itself provides that the legislature "shall provide for a system of common schools by which a free school shall be kept up and supported" (sec. 5, art. IX), and that "the public school system shall include . . . elementary schools and . . . secondary schools" (sec. 6, art. IX). The history of section 6 and its successive amendments shows that the term "secondary schools" has been substituted for the term "high schools," and means, or at least includes, high schools. The authority to provide for and support high schools of necessity implies authority to provide the buildings and the furniture, fixtures, and appliances therein necessary to carry them on. The authority to provide all these things is, therefore, derived from the express language of the constitution.
The fact that a provision for free text-books is not essential to the maintenance of the high school system is demonstrated by the history of the common or elementary schools in this state and elsewhere. Such schools were successfully and effectively carried on in this state for more than sixty years before any free text-books were furnished for the pupils. Consequently, the authority to keep up and support high schools does not, by implication, include authority to furnish text-books for the pupils who attend them.
If it were not for the aforesaid constitutional prohibition against gifts by the state to any individual, I believe the legislature would have power, under the general grant of section 1, article IV, and under the command of section 1, article IX, to "encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement," to go to the length of providing free text-books *Page 508 for pupils in all of the schools. But with this inhibition in force such gift is, in my opinion, beyond the legislative power.
Rehearing denied.
All the Justices concurred, except Shaw, J., who dissented.