dissenting.
The majority opinion holds the statutes here involved *141unconstitutional on three separate grounds, finding that they violate (1) Article YII, section 11, of the Constitution of Nebraska; (2) the First Amendment to the Constitution of the United States; and (3) Article III, section 18, of the Constitution of Nebraska. This seems to us to be a case of judicial overkill and while the finding based upon ground numbered (1) is essentially one of first impression so far as our own precedents are concerned and must necessarily stand or fall without directly supporting authority (although analogous cases from other jurisdictions support a finding of constitutionality), we feel that the findings on grounds (2) and (3) either disregard or misapply, or both, sound precedent of the Supreme Court of the United States which is the basic authority when the Constitution of the United States is to be construed. Ground (3) involves our state Constitution and relates essentially to a classification question and United States Supreme Court opinions on the issue are in principle applicable.
A statute essentially the same as the oné we have under consideration here was considered by a three-judge court in the United States District Court for the District of Kansas in the case of Americans United for Separation of Church & State v. Bubb,-F. Supp.-(February 27, 1974). The opinion in that case collates the applicable principles from opinions of the Supreme Court of the United States. Because of the availability of this convenient collation, we will in some instances quote from the opinion in that case as well as the primary authority and sometimes adopt the approximate language of that opinion without specific citation.
We first deal with the question of constitutionality as it relates to Article III, section 18, of our own Constitution re “exclusive privileges” and the asserted invalid classification. The majority opinion seems to say: That the requirement that the students be (1) residents of Nebraska; (2) they meet certain financial tests; (3) that they must be admitted to the college within 5 years *142of high school graduation, but the time in military service is excluded from those years; (4) that the act is not applicable to students who want to attend a private school outside the state; and (5) that the act does not apply to students seeking vocational type training, all make the classification invalid.
No authority whatever is cited. The limitations are patently related to one of the purposes of the act which are stated by the Legislature to be to relieve the load on the public university and at the same time to provide a freedom of choice to the student with a consequent benefit to the taxpayers of the state. Absent the possible prohibiting effect of Article VII, section 11, the object sought to be accomplished is within the legislative purview and the means the Legislature has adopted are not demonstrably irrelevant to this policy which it would be free to adopt. The finding of the majority to the contrary seems to us to be an arbitrary edict and fails to observe the applicable constitutional standard found in the following cases: Nebbia v. New York, 291 U. S. 502, 54 S. Ct. 505, 78 L. Ed. 940, 89 A. L. R. 1469; Ferguson v. Skrupa, 372 U. S. 726, 83 S. Ct. 1028, 10 L. Ed. 2d 93, 95 A. L. R. 2d 1347; Allied Stores of Ohio v. Bowers, 358 U. S. 522, 79 S. Ct. 437, 3 L. Ed. 2d 480.
We believe the matter will be seen in a clearer perspective if one were to in effect reverse the classification and assume that the Legislature had determined that the state had a great need for persons skilled in the vocational occupations, for example, the building trades; and that the state vocational schools could not accommodate the demand, and that to meet the need without expanding the state schools it authorized tuition aid to students to meet these needs. Surely the classification is not suspect because merely academic training is not included; nor because some financial need is a criteria. The Legislature can classify in accordance with the needs of the state and take necessary steps to meet those needs.
*143Adoption of a ground of decision based on classification, we believe, bodes ill for future cases involving classification questions. We doubt greatly the judicial wisdom of such a precedent.
In Americans United for Separation of Church & State v. Bubb, supra, the court held the classification valid, saying: “The law is well settled, however, that the equal protection clause of the Fourteenth Amendment does not deny a state the power to treat different classes of persons differently; what the clause does prohibit is legislation treating those statutorily imposed classes differently based upon criteria wholly unrelated to the objective of the statute. If the statutory classification is reasonable, and rests on some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly situated are treated alike, there is no violation of the equal protection clause. Reed v. Reed, 404 U. S. 71 (1971); Dandridge v. Williams, 397 U. S. 471 (1970). While the Statute in question establishes a class of students limited to those attending private colleges, the Statute in no way discriminates against the class of students attending state colleges and universities-. Any student attending a state institution of higher learning automatically receives state aid at least equal to the amount a student may receive under the tuition grant program. (This is true in our case also.) Admittedly two classes of college students exist, but both are treated similarly and thus the Statute creates no discrimination between the two classes.
“Assuming arguendo the Statute does produce unequal treatment, plaintiffs still have failed to show that the Statute bears no rational relationship to legitimate state purposes. As noted in Brown v. Board of Education, 347 U. S. 483, 493 (1954), ‘education is perhaps the most important function of state and local governments.’ And education is enhanced by the role private institutions play in raising national levels of knowledge, competence *144and experience. Board of Education v. Allen, 392 U. S. 236 (1968). The State therefore has a legitimate interest in advancing the welfare of its college population and of its private educational institutions.”
The majority opinion completely ignores the mandate of our own Constitution contained in Article I, section 4, which after the provision for freedom of worship, conscience, and the prohibition against compulsory attendance and support of any place of worship and the prohibition of discrimination on account of religious belief or lack of it, goes on to say: “Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the Legislature to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction (Emphasis supplied.) The words in this section of the Constitution directing the passage of suitable laws to encourage schools certainly mean more than a mere statutory exhortation of encouragement. The term “pass suitable laws” can only mean laws which have an effect and which require implementation. This section of our Constitution cannot refer to the common schools of the state, the mandatory establishment of which is required by the specific provisions of Article VII, section 1, which reads: “The Legislature shall provide for the free instruction in the common schools of this state of all persons between the ages of five and twenty-one years.”
Let us now turn to the First Amendment argument. The majority opinion properly relies upon the three-pronged test of Lemon v. Kurtzman, 403 U. S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745, but, we believe, misapplies it. There is not the slightest evidence of intent to aid religion either in stated legislative purpose or in the stipulated evidence. The Supreme Court of the United States has repeatedly and consistently held that the First Amendment does not prohibit all contact between state and church. As Justice Black said in Zorach v. *145Clauson, 343 U. S. 306, 72 S. Ct. 679, 96 L. Ed. 954 (1952) (as paraphrased in Americans United for Separation of Church & State v. Bubb, supra): “. . . if all contact were prohibited between church and state policemen would not be allowed to help parishioners into their place of worship, prayers in our legislative halls would be prohibited, the proclamation making Thanksgiving Day a holiday would be unconstitutional, and all references to- God running through our laws, our public rituals, and ceremonies would be flouting the First Amendment.”
The interpretations of the Supreme Court of the United States indicate that the Establishment Clause does not demand separation in all respects. For example, New York City’s public schools were permitted to release during school time those students who wished to attend religious courses operated outside the school building by a duly constituted religous body. Zorach v. Clauson, supra. New Jersey was allowed to spend tax dollars to pay the bus fares of parochial school pupils. Everson v. Board of Education, 330 U. S. 1, 67 S. Ct. 504, 91 L. Ed. 711. New York was permitted to order local public school authorities to lend textbooks free of charge to students in grades 7 through 12 attending parochial schools. Board of Education of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 88 S. Ct. 1923, 20 L. Ed. 2d 1060 (1968). And South Carolina was allowed to issue revenue bonds which provided to a Baptist controlled college financial assistance in the construction of additional buildings and facilities. Hunt v. McNair, 413 U. S. 734, 93 S. Ct. 2868, 37 L. Ed. 2d 923.
The United States Supreme Court cases, including Hunt v. McNair, supra, have all reiterated: “Whatever may be its initial appeal, the proposition that the Establishment Clause prohibits any program which in some manner aids an institution with a religious affiliation has consistently been rejected. E.g., Bradfield v. Roberts, 175 U. S. 291 (1899); Walz v. Tax Comm’n, 397 U. S. *146664 (1970); Tilton v. Richardson, supra. Stated another way, the Court has not accepted the recurrent argument that all aid is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends.
“Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting. In Tilton v. Richardson, supra, the Court refused to strike down a direct federal grant to four colleges and universities in Connecticut. Mr. Chief Justice Burger, for the plurality, concluded that despite some institutional rhetoric, none of the four colleges was pervasively sectarian, but held open that possibility for future cases: ‘Individual projects can be properly evaluated if and when challenges arise with respect to particular recipients and some evidence is then presented to show that the institution does in fact possess these characteristics.’ 403 U. S., at 682.” Hunt v. McNair, supra.
The cases have all pointed out that the mere fact that a college is church related does not bar aid and that a mere formalistic relationship does not render all aid in violation of the Establishment Clause. Hunt v. McNair, supra, note 8. The burden of proof of showing the extent of church relationship in applying the three-pronged test is upon the plaintiffs. Hunt v. McNair, supra, note 8; Board of Education of Central School Dist. No. 1 v. Allen, supra.
In our case the legislative purpose is clearly a secular one: To relieve the burden on the public institutions by enabling qualifying students to attend the private school of their choice. A tuition grant on the college level is not a sectarian purpose. Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, *14793 S. Ct. 2955, 37 L. Ed. 2d 948; Americans United for Separation of Church & State v. Bubb, supra.
Does the present act have the primary effect of advancing religion? The Nyquist, S'loan, and Levitt cases (all referred to in Bubb) all involved elementary and secondary schools with a sectarian mission. Here the issue is whether the colleges involved have a sectarian mission. To determine that issue we must look at the evidence. This is what the Federal District Court did in Americans United for Separation of Church & State v. Bubb, supra, in accordance with the directions of the Supreme Court of the United States in Hunt v. McNair, supra.
The Supreme Court of the United States recognizes and has repeatedly reiterated that aid to education does not necessarily have the same effect in church related institutions of higher learning as it does in parochial and elementary schools. Walz v. Tax Commission, 397 U. S. 664, 90 S. Ct. 1409, 25 L. Ed. 2d 697; Tilton v. Richardson, 403 U. S. 672, 91 S. Ct. 2091, 29 L. Ed. 2d 790; Hunt v. McNair, supra. The Kansas federal court in the case referred to summarizes the criteria laid down by the Supreme Court of the United States in making such determinations under the following considerations: (1) Religious restrictions on admission. (2) Required attendance at religious activities. (3) Required obedience to doctrine and dogmas of a particular faith. (4) Required attendance at courses on theology or doctrine of a particular faith. (5) Are the colleges an integral part of the religious mission of the church sponsoring them. Mere opportunity for involvement is not disabling. (6) Is a substantial purpose the inculcation of religious values. (7) Are religious restrictions imposed on faculty appointments.
Accordingly the court would be required to examine the evidence in this case and make a separate determination with reference to each of the schools involved. Our own examination would indicate that two or perhaps *148three of the' schools involved would be debarred and that the others are not. In Tilton, at p. 687, the United States Supreme Court concluded: “In short, the evidence shows institutions with admittedly religious functions but whose predominate higher education mission is to provide their students with a secular education.” In Tilton, direct aid to church-related colleges was upheld, the court saying: “There are generally significant differences between the religious aspects of church-related institutions of higher learning and parochial elementary and secondary schools. The ‘affirmative if not dominant policy’ of the instruction in pre-college church schools is ‘to assure future adherents to a particular faith by having control of their total education at an early age.’ . . . By their very nature, college and postgraduate courses tend to limit the opportunities for sectarian influence by virtue of their own internal discipline. Many church-related colleges • and universities are characterized by a high degree of academic freedom and seek to evoke free and critical responses from their students.” We note here that students studying for the ministry are excluded from tuition aid under the act.
The entanglement criteria is, in our judgment, not at all applicable in this case.
We will now turn to the central question and that is the application of Article VII, section 11, of our own Constitution. If, of course, the plan which the statute authorizes is not “in aid of” then the First Amendment issue is effectively disposed of as is the Article VII, section 11, question.
The sole possible benefit which can accrue to any of the institutions in question is the possibility that the statute will get for them more students. The plan does not relieve any of the institutions of any portion of their costs or expense. The evidence shows that the cost of educating a student in each of the colleges in question exceeds the tuition charge by a substantial amount. The tuition grant which an eligible student will receive, to*149gether with the amount paid by him from his own funds or other sources, does not in any case equal the cost to the institution of educating the student. The institution gets no more than it would in any event. It is not aided in the constitutional sense.
We think the point can be well made by analogizing the method under which the tuition grants would operate to the manner in which the State of Nebraska provides education for students in veterinary medicine and surgery. The state has no veterinary school but it does appropriate to the University of Nebraska a sum of money known as “(8) the Veterinary School Fund.” § 85-122, R. R. S. 1943. The University then contracts with out-of-state veterinary schools to accept Nebraska residents for training at the same tuition charges made to their own resident students. The University of Nebraska then makes up this difference from the Veterinary School Fund. A part of this package is reciprocity to other schools in areas of training which their own schools do not afford.
It seems to us that the fact that the contracts are made by the University of Nebraska and paid from tax funds cannot change the color of the horse. Neither can the fact that services are exchanged affect the nature of the transaction.
We do not believe that this procedure for providing veterinary education for Nebraska residents violates the “in aid of” provision of our Constitution merely because a school outside the state, which of course is “not exclusively owned and controlled by the state or any subdivision thereof,” is enabled to better perform its function or because the State of Nebraska accomplishes a desirable result using the facilities of out-of-state schools. The benefit accrues to the state and its people just as it does in the case of the tuition aid program we are considering. Yet if the act we are considering is unconstitutional, so is the appropriation to *150the “Veterinary School Fund,” the proceeds of which go directly to schools “not exclusively owned and controlled by the state or a governmental subdivision thereof.” We believe in the constitutionality of that appropriation and abhor the precedent of the majority opinion which would require, if the issue is ever raised, a declaration of the unconstitutionality of the appropriation for veterinary training if we are to adhere to the principle of stare decisis. This, of course, we must do in cases which are not distinguishable if we are to be governed by principle and are not ourselves to be considered lawless.
The appellant’s brief sets forth pertinent authority on the “in aid of” question and we quote directly from the brief: “. . . in Community Council v. Jordan, 102 Ariz. 448, 432 P. 2d 460 (1967), the Arizona Supreme Court measured that state’s constitutional prohibition of appropriations ‘in aid of’ sectarian organizations against a program whereby the State Department of Welfare provided matching funds of $1.00 (40%) for every $2.50 spent by the Salvation Army in giving emergency relief to needy residents. In holding that the 40% reimbursement did not constitute the type of ‘aid’ that was forbidden by the Arizona Constitution, that Court said:
“ ‘In order to fulfill the original intent of the constitution, the word “aid” like the word “separation” must be viewed in the light of the contemporary society, and not strictly held to the meaning and context of the past.
“ ‘. . . The. encouragement by partial reimbursement of any person or an organization to spend more than it will receive is hardly “aiding” that person or organization on to a healthy financial future and in fact, may tend to preclude any future at all.’ 432 P. 2d at 466. . . .
“The interpretation given to the term ‘aid’ by the Arizona Court in Jordan, supra, has been expressed by *151other jurisdictions as well, particularly in tuition reimbursement cases. In State ex rel. Atwood v. Johnson, 170 Wis. 251, 176 N. W. 224 (1920) the Supreme Court of Wisconsin upheld the Wisconsin Educational Bonus Law, an Act that would provide financial assistance to servicemen who wished to continue their education after discharge. The Act provided that all institutions, public or private, sectarian or non-sectarian, which enrolled qualifying veterans would be reimbursed by the state for the actual increase of costs incurred through the attendance of such students. Opponents of the bill challenged its constitutionality on the ground that it ‘gives financial aid to religious schools.’ 176 N. W. at 224. To this the Wisconsin Court replied:
“ ‘The contention that financial benefit accrues to religious schools from the Act is untenable. Only actual increased cost to such schools occasioned by the attendance of beneficiaries is to be reimbursed. They are not enriched by the service they render. Mere reimbursement is not aid/ 176 N. W. at 228 (emphasis added).”
The case of Synod of Dakota v. State, 2 S. D. 366, 50 N. W. 362, 14 L. R. A. 418, cited in the majority opinion, is not applicable because there the state was paying 100 percent of the cost of the education.
We continue from appellant’s brief: “The ‘less than cost’ doctrine has also been adopted by the Illinois Supreme Court in interpreting that part of the Illinois Constitution which prohibits - state ‘aid’ to sectarian institutions. In Dunn v. Chicago Industrial School for Girls, 280 Ill. 613, 117 N. E. 735 (1917), that Court held that Illinois’ constitutional prohibition on ‘aid’ to sectarian institutions was not violated when Cook County appropriated and paid $15 per month for each girl committed by the juvenile court to the Chicago Industrial School for Girls, a school conducted by the Religious Sisters of Mercy. This was so because the *152amount paid by the state was less than it would cost the state if it were to send the girls to the State Training School for Girls ($28.88/month) and the amount paid was also ‘less than the cost of food, clothing, training, medical care, and tuition furnished to the wards of the county’ by the institution. 117 N. E. at 736 (emphasis added). Thus, no prohibited ‘aid’ resulted from such payments.
“The Supreme Court of Oklahoma has adopted this same point of view. In Murrow Indian Orphans Home v. Childers, 197 Okla. 249, 171 P. 2d 600 (1946), it was held that state payments to a Baptist children’s home were not in violation of the Oklahoma constitutional prohibition against appropriations ‘directly or indirectly, for the support or benefit of’ a church or sectarian institution. The record demonstrated that the State made annual payments of $70 per child, but the actual per capita operating costs of the home were from $225 to $250 per child. The Oklahoma court determined that the State was not only fulfilling its duty by such payments, but that it was also receiving a substantial element of return in such an arrangement. As a result, the payments were deemed to be relevant ‘to the affairs of the State’ and not offensive to the state constitution.”
This seems to us clearly a case where the proposition (which we have up to now rather consistently adhered to), that where there is a reasonable doubt as to constitutionality the statute must be upheld is applicable. Dwyer v. Omaha-Douglas Public Building Commission, 188 Neb. 30, 195 N. W. 2d 236. We would find the statutes in question constitutional.