dissenting; and, DONALDSON, Justice, concurs in the dissent.
I am forced to disagree with the majority on four essential grounds. First, it is my strong conviction that the majority opinion represents a serious encroachment by the judicial branch of government into an area heretofore reserved, both by the Idaho Constitution and previous opinions of this Court, to the legislative branch. The majority has, sua sponte, usurped the legislative function and characterized I.C. § 33-1501 as “religious.” Such a judicial characterization completely ignores the legislative statement contained in the enactment that I.C. § 33-1501 is a declaration of public policy, the primary requirements of which are the safety, protection and health of the pupils. The expressed purpose of the statute is to provide transportation for the public and private school pupils within the school districts.
This Court has held that the power to make and determine policy for the government of the state is vested in the legislature.1 In 1970 the Idaho legislature amended I.C. § 33-1501, which establishes the formula for allocation of state monies for busing of school children, by inserting the words “and private” between the words “public” and “school pupils.” The legislature’s intent was to extend the benefits of that statute and the state monies thus expended to all school children whether public or private. I.C. § 33-1501 by its terms is of statewide application and operates uniformly upon all members of a proper legislative classification which encompasses all school children attending public and private schools, whether sectarian or non-sectarian, within districts which are now or hereafter eligible to receive state-aid for transportation under I.C. § 33-1501.
This Court presumes legislation to be constitutional and will seek to sustain rather than invalidate legislative action where it is open to interpretation.2 It is my belief that one must necessarily conclude that the legislature has constitutionally exercised its policy making power in this case. This and not “religion” is the primary issue in this case. Children attending private schools whether sectarian *399or non-sectarian are to be afforded the opportunity to ride public schools buses. It is clear from, the enactment itself that the expenditure is not for the benefit of the school, that it is not designed to support the school, but instead is intended, as clearly stated in the statute, to provide for the safety of children attending school, whatever that school might he. The legislature has simply concluded that private school children are as susceptible to the dangers of traffic as are the public school students.
The emphasis by the majority on the issue of religion seems, at best, misplaced. The legislation is directed towards public and private school children. A certain percentage of private school children happen to be children who attend parochial schools. But the contested part of the legislation is much broader and of wider application than a reading of the majority opinion would lead one to believe, i. e., it extends to all private school children, whether sectarian or non-sectarian. The “religious” issue seems to be more fabricated than real and it is unfortunate that the majority has accepted and even further expanded the original distortion of the issue propounded by the appellants. As a result, I must extend my disagreement with the majority to a discussion of the religious issues that have been developed in the majority opinion.
The second and third grounds for my dissent are that the denial of busing for the reasons stated in the majority opinion violates the Equal Protection Clause of the Fourteenth Amendment as well as the Free Exercise Clause of the First Amendment of the U.S. Constitution. Although the landmark case of Everson v. Board of Education 3 was not decided on equal protection grounds, there is an indication of how the U.S. Supreme Court regarded this issue in a free exercise context:
“[New Jersey] cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation. * * * [W]e must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general State law benefits to all its citizens without regard to their religious belief.” (Emphasis theirs).4
Pierce v. Society of Sisters,5 established the constitutional right of a parent to send his child to parochial schools and denied to the state the right to prohibit the operation of those schools and child attendance at them. This principle has been embodied by our legislature in I.C. § 33-202 which also compels all children in Idaho to attend approved schools:
“The parent or guardian of any child resident in this state who has attained the age of seven (7) years at the time of the commencement of school in his district, but not the age of sixteen (16) years, shall cause the child to be instructed in subjects commonly and usually taught in the public schools of the state of Idaho. Unless the child is otherwise comparably instructed, as may be determined by the board of trustees of .the school district in which the child resides, the parent or guardian shall cause the child to attend a public, private or parochial school during a period in each year equal to that in which the public schools are in session; there to conform to the attendance policies and regulations established by the board of trustees, or other governing body, operating the school attended.”
*400The parochial schools referred to are certified by the State Board of Education. The parents of parochial as well as private school children are required to pay the same amount of tax to support the public school system as do public school parents. To deny to parochial school children the benefit of transportation because of the fact they choose to attend a parochial school denies them Equal Protection. The denial by such a classification is unreasonable. There is nothing idealogical, sectarian or religious about a bus. All children should share the benefits of public transportation. The' transportation should be provided the student, not because he attends a certain school but because he is a child within a certain classification properly created by the legislature.
A recent decision by the Supreme Court of Appeals of West Virginia is very relevant to the case at bar. That case involved the same issue as the case at bar except that in West Virginia only Catholic students were involved, where in Idaho all private school children are involved making the West Virginia Court’s reasoning even more applicable a fortiori. The West Virginia Court stated:
“When a county board of education has provided a system for the transportation of school children by a bus, pursuant to the provisions of Code, 1931, 18-5-13(6), as amended, the refusal of the county board of education to provide such transportation to certain children of the county, merely because they attend a Catholic parochial school, denies to such children and their parents the equal protection of the law which is guaranteed by the Fourteenth Amendment of the Constitution of the United States and also denies to such children and their parents their right to religious freedom guaranteed by the First Amendment of the Constitution of the United States * * 6
In West Virginia, as in Idaho, children under a certain age are compelled to attend state accredited schools whether that be private or parochial. The West Virginia Supreme Court went on to say :
“School buses owned and operated by county boards of education are, in a great measure at least, maintained and operated in order to protect the health, safety and welfare of the students who are transported thereon. Numerous statutes and traffic regulations are designed to afford a special degree of safety to children transported on public school buses. The buses protect the children from all sorts of inclement weather, including rain, snow and sleet. By the system of bus transportation maintained by county boards of education, children are protected, in a great measure, from many of the dangers incident in this day, to travel on public streets, sidewalks and highways arising from vehicular traffic hazards and from molestation, personal violence, kidnapping or other harm of a criminal character. We are of the opinion, therefore, that, in these two cases, a denial to parochial school children of all right to the benefit of the facilities of transportation on buses, maintained and operated for the transportation of public school children by the respective county boards of education, denies to the Catholic parochial school children and their parents the equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution of the United States.” 7
Regarding the companion issue of free exercise, the West Virginia Court stated that:
“It is quite true that a Catholic child clearly would be afforded school bus transportation by the mere expedient of electing to attend a public school. We are of the opinion, however, that the denial to children attending Catholic parochial schools of equal rights of bus transportation accorded to children attending *401public schools deprives Catholic children and their parents of their right of religious freedom in violation of the provisions of the First Amendment of the Constitution of the United States * * *" 8
In the case of Sherbert v. Verner,9 the U.S. Supreme Court held that a state may not limit a citizen’s acceptance of public welfare benefits to his foregoing a practice or precept of his religion unless the state could show a paramount interest. In Sherbert no paramount or overriding state interest was established. The majority in the case at bar, however, contends that the intended private school recipients, among whom there are some parochial school students, of the public welfare legislation of busing must forgeo this benefit since the estate has a paramount interest in prohibiting establishment of religion. The contested legislation does not violate the prohibitions of our Idaho Establishment Clause since it is intended to aid all school children. Therefore, there can be no overriding or paramount state interest of the type referred to by the majority in this case. The real overriding or paramount interest was constitutionally declared by the legislature in I.C. § 35-1501; i. e., the public policy provision to have all school children bussed.
The majority has stated that “ * * * busing benefits are denied to all students who attend religious schools and this is the Idaho Constitution’s price for exercising one’s religious beliefs.” Such a position is in direct contravention of the United States Supreme Court’s mandate in Sherbert unless Idaho could show a paramount state interest. This cannot be done. The Idaho legislature has unequivocally characterized its legislative or public policy as providing transportation for public and private school students, the primary requirements which are the health, safety and welfare of those pupils. Again, the question is presented— how can the judicial branch completely ignore the legislative function and take upon itself to declare and characterize the legislation as religious ? Such a position is untenable.
Furthermore, the aforementioned majority fiat is directed only at students who attend religious schools. The majority has ignored and left up in the air those students who attend nonsectarian private schools. Are they to be treated as the majority would treat religious school pupils? Or are they to be treated as public school pupils ?
Since I am forced to speak to “religious” issues as a result of the majority opinion, I must conclude that it is at least clear that compelling a child of sectarian beliefs to attend a public school would violate his constitutional rights under the Free Exercise Clause as set out in the Pierce case, supra, and embodied by I.C. § 33-202. It should also be clear that compelling a child of sectarian belief to make a choice of attending public schools and forfeiting his right to ride public school buses, denies him his rights guaranteed under the Free Exercise Clause and also denies him Equal Protection of the law by creating an unreasonable classification in establishing criteria for public transportation to schools.
I.C. § 33-1501 does not violate the Establishment Clauses of either the Idaho or the U.S. Constitutions. There have been four United States Supreme Court opinions in this area which, while not binding on this Court in this instance, are highly persuasive. This is especially true since, contrary to the position of the majority, I interpret the Idaho Constitutional provision in art. IX, sec. 5 as being as restrictive as the First Amendment of the United States Constitution, not more restrictive. The Idaho constitutional provision regarding Establishment of Religion and the United States Constitutional provision are essentially the same. The words may vary but the effect was intended to be the same.
*402The majority states that the Idaho Constitution, art. IX, sec. 5 requires this Court -to focus its attention on the legislation in question to determine whether it is in “aid ■of any church” and whether it is “to help ■support or sustain” any church affiliated -school. The majority goes on to say that .the requirements of this constitutional provision thus eliminate as a test for determination of the constitutionality of the statute both the “child benefit” theory discussed in Everson v. Board of Education 10 and the standard of Board of Education v. Allen11 both discussed, infra. There is no mention of the “child benefit” theory in the United States Establishment Clause. Nevertheless, the United States Supreme Court developed such a test as an aid for interpretation of that clause. Similarly our Constitution does not require this Court to apply “aid to religion” in its interpretation.
Everson, supra, is the leading case regarding the constitutionality of school busing statutes. The U.S. Supreme Court by a 5 to 4 decision, upheld reimbursement of parents for fares paid for transportation of students attending public and Catholic schools, the payments being made pursuant to a New Jersey statute authorizing school boards to make contracts for such transportation. The schools were operated by a Catholic priest and in addition to secular education there was religious instruction given.
The Supreme Court upheld the statute and said the school board resolution did not violate the First Amendment prohibiting any “law respecting an establishment of religion,” and stated:
“That Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.
“This Court has said that parents may, in the discharge of their duty under state compulsory education laws, send their children to a religious rather than a public school if 'the school meets the secular educational requirements which the state has power to impose. See Pierce v. Society of Sisters, 268 U.S. 510 [, 45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468]. It appears that these parochial schools meet New Jersey’s requirements. The State contributes no money to the schools. It does not support them: Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.” 12
However, the Everson issue was not deemed by many observers as completely settled. This was due in part to certain dicta in the majority opinion written by Justice Black as to the meaning of the Establishment of Religion Clause. Some of this dicta is cited in our majority opinion at pp. 12-13 and also later in this dissent.
The next important case to follow Everson was School District of Abington Township, Pa. v. Schempp,13 which held unconstitutional required Bible readings in public schools.
The next significant case in this area to follow Everson was Board of Education v. Allen,14 wherein the Supreme Court upheld a New York statute requiring local public school authorities to lend textbooks free of charge to all students grades 7 through 12. including students attending private parochial schools. The Supreme Court held the statute consistent with the First Amendment requirements since the statute merely made available to all children the benefits of the general program to lend *403school books free of charge. In this case, books were furnished at the request of the pupil and ownership remained, at least technically, in the state. No funds or books were furnished to parochial schools, and the financial benefit was held to be to the parents and children, not to the schools.
The Supreme Court went on to say that other cases involving aid to private schools, including Pierce v. Society of Sisters,15 have:
“been a recognition that private education has played and is playing a significant and valuable role in raising national levels of knowledge, competence, and experience. Americans care about the quality of the secular education available to their children. They have considered high quality education to be an indispensible ingredient for achieving the kind of nation, and the kind of citizenry, that they have desired to create. Considering this attitude, the continued willingness to rely on private school systems, including parochial systems, strongly suggests that a wide segment of informed opinion, legislative and otherwise, has found that those schools do an acceptable job of providing secular education to their students. This judgment is further evidence that parochial schools are performing, in addition to their sectarian function, the task of secular education.” 16
There is little doubt that I.C. § 33-1501 would be held constitutional by the United States Supreme Court. In Allen, supra, even the three dissenters conceded the nonidealogical nature of a bus. One of the latest statements by the High Court regarding the First Amendment was in Walz v. Tax Commission of City of New York.17 While not binding on this Court in the case at bar, it is nevertheless highly persuasive in light of what I consider the essential similarity between the Idaho Establishment Clause and the United States Establishment Clause. Chief Justice Burger stated in a majority opinion that:
“The hazards of placing too much weight on a few words or phrases of the Court is abundantly illustrated within the pages of the Court’s opinion in Everson. Mr. Justice Black, writing for the Court’s majority, said the First Amendment ‘means at least this: Neither a state nor the Federal Government can * * * pass laws which aid one religion, aid all religions, or prefer one religion over another.’ 330 U.S., at 15, 67 S.Ct., at 511.
Yet he had no difficulty in holding that:
‘Measured by these standards, we cannot say that the First Amendment prohibits New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools. It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children’s bus fares out of their own pockets * * *.’ Id., at 17, 67 S.Ct., at 512. (Emphasis added.)
“The Court did not regard such ‘aid’ to schools teaching a particular religious faith as any more a violation of the Establishment Clause than providing ‘state-paid policemen, detailed to protect children * * * [at the schools] from the very real hazards of traffic * * Ibid.
“Mr. Justice Jackson, in perplexed dissent in Everson, noted that
‘the undertones of the opinion, advocating complete and uncompromising separation * * * seem utterly dis*404cordant with its conclusion * * *.’ Id., at 19, 67 S.Ct., at 513.
Perhaps so. One can sympathize with Mr. Justice Jackson’s logical analysis but agree with the Court’s eminently sensible and realistic application of the language of the Establishment Clause. In Everson the Court declined to construe the Religion Clauses with a literalness that would undermine the ultimate constitutional objective as illuminated by history. Surely, bus transportation and police protection to pupils who receive religious instruction ‘aid’ that particular religion to maintain schools that plainly tend to assure future adherents to a particular faith by having control of their total education at an early age. No religious body that maintains schools would deny this as an affirmative if not dominant policy of church schools. But if as in Everson buses can be provided to carry and policemen to protect church school pupils, we fail to see how a broader range of police and fire protection given equally to all churches, along with nonprofit hospitals, art galleries, and libraries receiving the same tax exemption, is different for purposes of the Religion Clauses.”18
Thus, we can see that the thrust of Everson not only is still viable, it has been expanded by Wads. Like the First Amendment to the U.S. Constitution which was interpreted by Justice Black in Everson to prohibit “aid” to religion, our Idaho provision framed in terms of “any aid” to religion should not be interpreted with “a literalness that would undermine the ultimate constitutional objective as illuminated by history.” That objective is to preserve “the autonomy and freedom of religious bodies while avoiding any semblance of established religion.” 19
The constitutional posture of the U.S. Supreme Court regarding state transportation legislation for the public as well as the private (including parochial) school pupils is clear. However, the position taken by various state courts has been varied in the past. The majority in the case at bar has adopted the view sometimes referred to as the “strict view” which, since Everson, has become a minority view and is contra the trend among state courts towards the Everson-type approach. This “strict view” holds that the primary purpose of legislatively created transportation programs for public as well as for parochial students versus the broader class of private school children is to promote the interest of the religious or sectarian institution versus that of the child. The contrary or Everson position now taken by the majority of state courts is sometimes referred to as the “child benefit” theory. This position views the direct or primary benefits of school transportation legislation as flowing to the children in providing for their safety and holds that parochial schools only receive an indirect benefit.
When Everson was before the U.S. Supreme Court in 1947, both the “strict view” position and the “child benefit” position as taken by the various state courts at that time were before it. At that time the states were about equally divided as to which position to take. Subsequent to 1947 the equal division did not remain as Everson had its effect on the state courts.20
*405Furthermore, most of the state decisions relied upon in the majority opinion were heavily influenced by the New York case of Judd v. Board of Education,21 which was one of the first and most influential •courts to apply the “strict view.” The Judd philosophy was subsequently abandoned by the same New York court in favor •of an Everson-type approach.22 Judd and its followers also erroneously doubted the continued viability of Everson. Nevertheless the post-Everson trend has clearly been away from the “strict view” and towards the “child benefit” position, which position is well established in reason as well as the weight of authority.
For the aforementioned reasons the judgment of the district court should be affirmed.
. Rich v. Williams, 81 Idaho 311, 341 P.2d 432 (1959).
. State v. Peterson, 61 Idaho 50, 97 P.2d 603 (1939); Idaho Gold Dredging Co. v. Balderston, 58 Idaho 692, 78 P.2d 105 (1938).
. 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947).
. Everson v. Board of Education, 330 U.S. at 16, 67 S.Ct. 512, 91 L.Ed. at 724.
. 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925).
. State ex rel. Hughes v. Board of Education, 174 S.E.2d 711, 712 (syllabus by the Court, paragraph 2) (W.Va.1970).
. 174 S.E.2d 711, 718-719.
. Id., 719.
. 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).
. Supra, note 4.
. 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed. 2d 1060 (1968).
. 330 U.S. 1, at 18, 67 S.Ct. 504, at 513.
. 374 U.S. 203, 222, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963).
. Supra, note 11.
. Supra, note 5.
. 392 U.S. at 247-248, 88 S.Ct. at 1928-1929.
.397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970).
. Id., at 670-672, 90 S.Ct. at 1412, 1413.
. Secular, neutral and non-idealogical services such as bus transportation have again been upheld by the U. S. Supreme Court in the very recent case of Lemon et al. v. Kurtzman, Superintendent of Public Instruction of Pennsylvania, et al., 401 U.S. 931, 91 S.Ct. 2105, 29 L.Ed. 2d 745, June 28, 1971.
. See, for example, Americans United Incorporated as Protestants & Other Americans United for Separation of Church and State, et al. v. Independent School Dist. No. 622, Ramsey County, 288 Minn. 196, 179 N.W.2d 146 (1970); Opinion of the Justices, 109 N.H. 578, 258 A.2d 343 (1969); Alexander v. Bartlett, 14 Mich.App. 177, 165 N.W.2d 445 (1968); Squires v. Inhabitants of City of Augusta, 155 Me. 151, 153 A.2d 80 (1959).
. 278 N.Y. 200, 15 N.E.2d 576 (1938).
. Supra, note 11.