In some states a practice has prevailed, while making liberal provision for instruction in public schools, to also give assistance to institutions owned and controlled by private corporations or by religious bodies or denominations. The legal right Ito do this has received but little attention. In one case in Massachusetts, under a constitutional provision which required moneys raised for public schools to be applied to those only which were under the order and superintendence of the public authorities, it was denied that the legislature could lawfully authorize a town to take moneys which had been raised for the public schools and appropriate them in support of a school founded by a charitable bequest, under which the order and superintendence of the school was vested in trustees who, though a majority were to be chosen by the inhabitants of the town, were yet limited to the members of certain religious societies. And in Wisconsin the authority of the legislature to empower a town to tax its citizens in aid of the erection of buildings for an educational institution to be owned and controlled by a private corporation was denied on general principles. "It strikes us," say the court, "at the first blush, that this is not the levy and collection of money for public purposes, as clearly as if the institute were not an incorporated body, but a mere association of private individuals resolved upon the establishment of a like institution. If it were such an institution, or a grammar or classical school, or a seminary built up and established by individual enterprise, as by persons engaged in the profession of teaching, or by others, and owned and controlled by those contributing towards it, and the emoluments belonging to them, we apprehend that no one would contend that the people [of the town] might be taxed for the purpose of donating the moneys to it. The fact that it is an institution incorporated by act of the legislature does not change its character in this respect. It is but a most frivolous pretext for giving to a corporation, where there is no certain and definite personal responsibility, money exacted from the

taxes collected from colored people to the support of schools for colored children. They cannot, therefore, be taxed for exclusively white schools. See Marshall v. Donovan, 10 Bush, 681; Claybrooke v. Owensboro, 16 Fed. Rep.,

1 Jenkins v. Andover, 103 Mass., 94. See People v. McAdams, 82 Ill., 356.

tax payers, which a just and honorable man engaged in the same business would hesitate to receive though paid without opposition, and to enforce the payment of which, against the will of the tax payers, he would never think of resorting to coercive measures, provided the same were lawful. It can no more be supported by taxation than if it were unincorporated, or a private school or seminary of the kind above supposed." This is strong language, and has much reason in its support, though it may be affirmed that it has had little or no influence on the course of legislation in other states.

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It has been decided to be competent for the legislature to authorize a town to tax itself in aid of the erection of buildings for a state educational institution to be constructed within it. In the particular case the purpose, as regards the state at large, was clearly public, but the locality was allowed to assume a special burden on the ground of special and peculiar benefits. A case in New York perhaps goes further, inasmuch as it sustains the authority of the legislature to require a vil lage to render such assistance. While it may be entirely proper to regard the incidental benefits to the locality as constituting a just basis for an exceptional tax upon it, no such ruling would be admissible where the building itself was not to be one owned and controlled by the public, and where consequently the sole ground for any taxation would be the incidental benefits to flow from a private undertaking. This has been so clearly shown in a case from which we have already quoted, that we copy from the opinion instead of attempting any statement of the general doctrine in our own language:

"That is not the kind of public benefit and interest which will authorize a resort to the power of taxation. Such benefits accrue to the people of all communities from the exercise in their midst of any useful trade or employment, and the argument, pursued to its logical result, would prove that compul

1 Curtis v. Whipple, 24 Wis., 350, 353, per Dixon, Ch. J.

Merrick v. Amherst, 12 Allen, 500. See, also, Marks v. Trustees of Pardue University, 37 Ind., 155; Burr v. Carbondale, 76 Ill., 455; Hensley Township v. People, 84 Ill., 544; Livingston County v. Darlington, 101 U. S., 407.

'Gordon v. Cornes, 47 N. Y., 608. In that case, however, there was to be a grammar school in the state building, free to the children of the village. Compare State v. Haben, 22 Wis., 661.

sory payment or taxation might be made use of for the purpose of building up and sustaining every such trade or employment, though carried on by private persons for private ends, or the purposes of mere individual gain and emolument. That there exists in the state no power to tax for such purposes is a proposition too plain to admit of a controversy. Such a power would be obviously incompatible with the genius and institutions of a free people; and the practice of all liberal governments, as well as all judicial authority, is against it. If we turn to the cases where taxation has been sustained as in pursuance of the power, we shall find in every one of them that there was some direct advantage accruing to the public from the outlay, either by its being the owner or part owner of the property or thing to be created or obtained with the money, or the party immediately interested in and benefited by the works to be performed, the same being matters of public concern; or because the proceeds of the tax were to be expended in defraying the legitimate expenses of government, and in promoting the peace, good order and welfare of society. Any direct public benefit or interest of this nature, no matter how slight, as distinguished from those public benefits or interests incidentally arising from the employment or business of private individuals or corporations, will undoubtedly sustain a tax. In thus endeavoring to define how the public must be beneficially interested in order to justify the raising of money by taxation in cases like the present, we of course do not intend to include all purposes for which money may be so raised. Taxes may be levied and collected for charitable purposes, but these constitute a peculiar ground for the exercise of the power which does not exist here.

"So claims founded in equity and justice in the largest sense, and in gratitude, will support a tax; such claims, however, and we think all others where taxation is proper, except claims founded in charity, may be referred to the general principle above spoken of, of public interest in, or benefits received by, the transaction out of which the claims arose." 99 1

Public charity. The support of paupers and the giving of assistance to those who, by reason of age, infirmity or disability

1 Curtis v. Whipple, 24 Wis., 350, 354, per Dixon, Ch. J.

are likely to become such, is, by the practice and the common consent of civilized countries, a public purpose. The laws not only exempt from taxation the limited means of such per sons, but they go further and provide public funds with which to furnish them retreats where they can be supplied with the necessaries, and, to a reasonable extent, with the comforts of life. Hospitals are also provided where dependent classes can receive medical aid and assistance, and asylums where the deaf, the dumb and the blind may be supported and taught, and where the insane may be kept from doing or receiving harm, and can have such careful and scientific treatment, with a view to their restoration, as they would not be likely to receive elsewhere. He would be a bold man who, in these days, should question the public right to make provision for these benevo lent objects. And this provision might not only be made by the establishment of institutions for the purpose, but private institutions might undoubtedly be aided with public funds, in consideration of services to be rendered to the public, and expenses to be incurred by them in assisting and relieving the same necessitous and dependent classes. The buildings and property of charitable bodies may also, with the utmost propri

1 It has been held not competent to levy taxes to be paid over to individuals or associations simply because they are charitable. In the particular case the legislature had required the agencies of foreign insurance companies to pay over two per centum of their receipts to an association for the relief of disabled firemen. "If the legislature may command such a contribution as this, we are unable to see why they may not command every citizen to contribute, not only to this association, but to every charitable association; and, indeed, to every man who spends his money and means in a charitable way. There are associations for all sorts of charity - why may not the legislature require us to contribute to them all, if they may require this class of people to contribute to this one? We cannot answer this question." Lowrie, Ch. J., in Philadelphia Association, etc., v. Wood, 39 Pa. St., 73, 82. But in New York it is decided that a constitutional provision that "neither the credit nor the money of the state shall be given or loaned to or in aid of any association, corporation or private undertaking," etc., would not preclude taxation by municipalities in aid of charitable societies and corporations. Shepherd's Fold v. New York, 96 N. Y., 137. But they cannot thus tax without being empowered by legislation, either expressly or by necessary implication. St. Mary's Industrial School v. Brown, 45 Md., 310. And the question of constitutional power must be one of construction which might depend largely on the peculiar state experience. Bay City v. State Treasurer, 23 Mich.,

ety and justice, be exempted from taxation, as by implication public buildings for the same purpose are exempted.1

Private business enterprises. In comparing the right to tax with the right of eminent domain it has been shown that taxation cannot be employed to aid mills and other manufactories in private hands. The rule there stated is general. However important it may be to the community that individual citizens should prosper in their industrial enterprises, it is not the business of government to aid them with its means. Enlightened states, while giving all necessary protection to their citizens, will leave every man to depend for his success and prosperity in business on his own exertions, in the belief that by doing so his own industry will be more certainly enlisted, and his prosperity and happiness more probably secured. It may therefore be safely asserted that taxation for the purpose of raising money from the public to be given or even loaned to private parties, in order that they may use it in their individual business enterprises, is not recognized as an employment of the power for a public use. In contemplation of law it would be taking the common property of the whole community and handing it over to private parties for their private gain, and consequently unlawful. Any incidental benefits to the public that might flow from it could not support it as legitimate taxation.2

In Directors of the Poor v. School Directors, 42 Pa. St., 21, 25, in which it was claimed that a public poor-house was taxable for school purposes under general words in the statute, Lowrie, Ch. J., uses the following vigorous language: "Tax the poor-house to support the schools? Why, this would be to take the poor taxes to support the schools; and the people must be taxed to pay the officers who perform such foolish service. If we require the townships, counties, towns, cities and state, and the road, school and poor authorities to tax each other, we shall furnish fees enough for several hundred officers engaged in transferring from one public body to another the taxes which it has collected for its public purposes. These poor taxes must be collected to support the schools and roads, and school taxes to support the poor, and so on all around. Surely it is not too much to say that this is absurd. The public is never subject to tax laws, and no portion of it can be without express statute. No exemption law is needed for any public property held as such."

2 Allen v. Jay, 60 Me., 124; S. C., 11 Am. Rep., 185. See a valuable note to this case by Judge Redfield, 12 Am. Law Reg., N. S., 493. In it reference