People Ex Rel. New York Institution for the Blind v. Fitch

The defendant, as comptroller of the city of New York, has in his hands the moneys raised by taxation for the purpose of furnishing clothing to blind pupils from that city receiving instruction in the New York Institution for the Blind, under § 3 of chapter 166 of the Laws of 1870. The institution has presented to the comptroller the proper bills and vouchers upon which to draw the money, but he has refused to audit or pay them for the sole reason that the state board of charities has notified him that the institution has not complied with certain rules and regulations formulated by that body with respect to charitable, correctional and reformatory institutions. There is nothing in the record or in the printed rules of the board to show what particular rule is claimed to apply to this institution or has been disregarded.

The managers of the institution assert that it is an educational and not a charitable corporation; that it is engaged in the business of educating blind children and is in no just sense a charitable institution. Moreover, they contend that it would be derogatory to its reputation, standing and success as an educational institution, engaged in the training and instruction of a special class of pupils, who are collected from all parts of the country and from other counties, to group it with poor houses, asylums and reformatories, rather than strictly educational institutions where it properly belongs. *Page 40 That such a classification would convey a false impression of the character and objects of the institution and thus embarrass and hinder its work, is, of course, quite possible.

These objections to the position of the comptroller and the state board of charities are fully set forth by the managers in the papers that appear in the record and upon which the court, at Special Term, granted a peremptory writ of mandamus requiring the comptroller to audit and pay the bills. The Appellate Division has affirmed the order and the comptroller appeals to this court.

The controversy, in one aspect, turns upon the single question whether the relator, the New York Institution for the Blind, is a charitable or an educational institution. If it is to be classed with the former, and is fairly within the meaning of the provision of the Constitution hereafter referred to, then the state board of charities is entitled to participate with the managers in its government, and has jurisdiction over it for the purpose of prescribing rules and regulations and exercising visitorial powers, but if it is to be classed with the latter it has not. The officers of the institution have stated in the moving papers as matters of fact, as already noted, that to classify the institution as one dispensing charity in some form, or as one the inmates of which are beneficiaries of charity in some form, would impair its reputation and usefulness as an institution of learning which it is claimed is its true character. The specific grounds or reasons upon which the managers base this contention have not been stated in such a manner that we can fully appreciate their force, but it is quite obvious that we should not resort to any strained or refined construction of the Constitution or the statutes in order to bring the institution within that class of corporations known and designated as charitable or reformatory. The true character of the corporation must be ascertained from the objects and purposes for which it was created, and the nature of the business in which it is now engaged.

The class to which any corporation properly belongs must be determined primarily from its powers and duties as enumerated *Page 41 in the charter. The object of its existence and the general functions which it may legally exercise and discharge are always supposed to be found in the statute from which its corporate life is derived.

The relator was incorporated under chapter 214 of the Laws of 1831 for the purposes clearly stated in the statute, in these words: "All such persons as now are or hereafter may become members of the said institution shall be, and are hereby constituted and appointed a body corporate and politic, in fact and in name, by the name and style of The New York Institution for the Blind, for the purpose of instructing children who have been born blind, or who may have become blind by disease or accident, and by that name they and their successors shall and may have succession and shall be in law capable of suing and being sued, pleading and being impleaded, defending and being defended in all courts and places whatsoever, in all manner of actions, suits, matters, complaints and causes whatsoever."

The purpose for which the corporation was created was, therefore, the instruction and education of children who have been born blind, or who may have become blind by disease or accident. It was not created for the purpose of administering any charity, or of dispensing alms for the relief of poor persons. It was a purely private corporation, organized for a purely educational work, namely, the instruction of a particular class of children. It has nothing whatever to do with the maintenance or care of that class known as the indigent blind, composed of persons of all ages and conditions. They are, no doubt, objects and beneficiaries of charity, and as such maintained and cared for by the state as a public charge in whole or in part. So far as this class are concerned, public moneys are raised and paid for care and maintenance and not for education. The indigent blind are beneficiaries of public charity in the same sense as the inmates of almshouses and poorhouses, though they may be maintained in separate and special institutions.

Those institutions are primarily charitable in their nature. *Page 42 The inmates, as a general rule, have passed the educational period of life, and whatever of instruction or mental discipline they may receive is merely incidental to the main object, which is personal relief.

Money contributed by the state, or any of its political divisions, for the purpose of educating blind children, is in no sense charity, while that contributed for the support of theindigent blind is, or may be.

The duties and obligations of the state with respect to education should not be confused with those that concern the care and support of the poor and unfortunate. The two obligations rest upon distinct theories, and have been assumed upon principles and for reasons that differ widely from each other. The state, through the Constitution, has taken upon itself the duty of imparting to every child within its jurisdiction, whether rich or poor, an education sufficient to enable him to discharge the duties of good citizenship and to earn his living in some lawful calling. The legislature is commanded to provide for a system of free schools in which all children may be educated. (Art. 9, § 1.) That the state owes as much to the unfortunate child who has been born or become blind, as it does to the child that can see, is a proposition which, it may be assumed, no one will deny. The blind child becomes a citizen and must engage in the struggle for existence as well as the more fortunate one who can see. The state is bound to educate them both, but it is obviously impossible to discharge this duty in the same way or under the same system. The conditions that surround the two children differ so widely that, while one may be educated in the common schools, the other must be educated in a different school, with different modes of instruction and different rules of discipline. It was to meet this obvious want in the case of blind children that the relator was incorporated. The state has not assumed this duty of education from any motives of charity or benevolence. The obligation rests upon a very different and much more selfish principle. It is really the principle of self-protection. Since a free state, founded upon the popular will, *Page 43 cannot exist unless sustained by intelligent and educated citizenship, the state itself assumes all the duties and obligations incident to such training and education. Hence, every child may claim from the state as a right such an education as will enable him to become a good citizen, and that term obviously implies reasonable fitness for all the duties of life. The state may, in some cases, furnish books for the child, and even clothing, but in doing so it dispenses no charity, but simply discharges an obligation which it has assumed. For every dollar that the state expends in the education of children, unable to educate themselves, it is supposed to receive an equivalent in a more elevated standard of citizenship.

But no one can claim charity as a right. Contributions for the support of the poor and unfortunate, whether they proceed from public or private sources, are purely voluntary and founded solely upon motives of religion and humanity. The demands of charity, whether upon individuals or the state, are always addressed to that conscientious sense of duty to relieve human suffering and to administer aid to those who are in distress.

While civilized governments in modern times do not disregard its claims, yet they are founded upon a duty of imperfect legal obligation. But the obligation to educate the children who are to become the future citizens is found in the express mandate of the Constitution, and enforced by compulsory laws.

Institutions that receive public or private funds for the support of the poor are properly classed as charitable institutions, since they dispense or administer charity in some form to those who are dependent upon it, and the inmates of such institutions are the beneficiaries and recipients of charity. But blind children who are educated wholly or partially by the aid of public moneys, are not the beneficiaries of any charity any more than the other children of the state who are educated at the public expense; and institutions for the education or instruction of blind children are not properly classed as charitable institutions any more than academies or schools *Page 44 receiving state aid. Since all the children of the state may claim the benefit of an education as a right secured to them by the Constitution, the blind child who happens to receive instruction in a private institution to which the state has contributed money to a limited extent, because it cannot, in that case, fully perform the duty of education itself, cannot properly be classified as a pauper. He stands upon the same footing as every other child in the state, and is simply a beneficiary of its policy of free education. The general government, through the action of Congress, has made provision for the support and military education of young men selected from congressional districts according to law, but it has never been supposed that the institutions in which they are educated are of a charitable nature, or that the young men themselves were the objects or beneficiaries of any charity.

Keeping always clearly in view the broad distinction between education and charity, we may now examine the statute under which the money in question was raised, in order to ascertain the object and purpose to which it was to be devoted. It was clearly intended for one or the other of these objects, that is, charity or education, but it is important to determine which. The material parts of the act of 1870, and under which this controversy has arisen, are as follows:

"Section 1. The managers of the New York Institution for the Blind are hereby authorized to receive, upon the appointment of the Superintendent of Public Instruction, made for a term not exceeding five years, all blind persons, residents of the counties of New York and Kings, between eight and twenty-five years of age, who, in the judgment of the board of managers of said institution, shall be of suitable character and capacity for instruction, and shall have charge of their maintenance, education and support, and shall receive compensation therefor from the state in the same manner as is now provided by law. The term of such appointments may be extended from time to time, by the Superintendent of Public Instruction, on the recommendation of the board of managers of the said New York Institution for the Blind, for such *Page 45 further period as they may deem advantageous in each individual case.

"Section 2. Application for admission into the institution shall be made to the board of managers, and each application shall set forth the age, the fact of blindness, and that the applicant is a legal resident of the town, county and state claimed as his or her residence, with such other information as the board may require; and each application shall be sworn to by the applicant, or his or her parents or guardian, and shall be signed by at least one member of the board of supervisors of the county in which the applicant may reside, and also be recommended by the president and superintendent of the said institution, and transmitted by the said institution to the Superintendent of Public Instruction.

"Section 3. The supervisors of the county of New York or Kings, from which State pupils shall be sent to and received in the said institution, whose parents or guardians shall, in the opinion of the Superintendent of Public Instruction, be unable to furnish them with suitable clothing, are hereby authorized and directed in every year while such pupils are in said institution, to raise and appropriate fifty dollars for each of said pupils from said counties respectively, and to pay the sum so raised to the said institution, to be by it applied to furnishing such pupils with suitable clothing while in said institution."

It will be seen that the institution is not obliged to receive any of the persons mentioned in the statute. It is a private institution, and may receive them or not at discretion. It has no power or right to receive them for any purpose but that of instruction or education. It can admit only such as are within certain age limits, embracing the educational period of life, and then only for a limited time. It cannot receive them otherwise than upon the appointment of the Superintendent of Public Instruction, who is the head of the educational department of the state. The children must, in the judgment of the managers, be of suitable character and capacity for instruction. The Superintendent cannot properly appoint the persons *Page 46 described, and the managers cannot properly receive them into the institution, except for the purpose of education. They may or may not be poor children, since the statute is silent on that point. The Superintendent may make the appointment according to his own judgment, but whether they are rich or poor the manifest purpose of placing them in the institution is education. They cannot enter for the purpose of support or as beneficiaries of charity. It is true that when received the state pays for their education and support, but support and maintenance are, in that case, merely incidental to education. The children cannot be educated without being kept in the institution, and so education and support must go together, and the state pays for all. But this is not charity. It is the discharge of the obligation which the state has assumed, to furnish to all children an education to fit them for the duties of citizenship. None of the children thus instructed are the beneficiaries or recipients of charity, any more than the children educated in the free common schools. In both cases the state is discharging the obligation, but in different ways and by different methods, since the circumstances and conditions of the children are different, but the theory and principle upon which it acts are in both cases the same. The sole purpose of collecting these blind children in this institution and retaining them there was, not relief from poverty or want, but to impart to them some useful knowledge, which is the end and aim of all education.

Since the enactment of the statute of 1870 the state has paid to this institution nearly a million and a quarter dollars out of the public treasury for the education of blind children. This vast sum was not a contribution by the state to charity, any more than the many millions which were paid during the same time for the support of free common schools.

In each case the money was really raised and paid for the same general purpose and in pursuance of the same general policy. The difference was in the methods employed to accomplish the same result, which was education. The private institutions which received and educated these blind *Page 47 children under contract with the state were not for that reason charitable institutions any more than the schools and academies in which the other children of the state were educated. They cannot be properly classified otherwise than as educational institutions. The state makes use of them as instrumentalities for discharging the obligation enjoined by the Constitution to provide for the education of all the children of the state. Most clearly the relator is not a charitable institution unless it is engaged in administering some charity of which the inmates, or some of them, are the beneficiaries. What charity does it dispense and what alms do the inmates receive? Whoever asserts that the institution is of a charitable nature should be able to answer these questions clearly and satisfactorily. The institution receives no money from the public for which it does not render a full equivalent, and, therefore, it receives nothing for charity. It is beyond dispute that the work in which it is engaged is the education of blind children of a certain age, under contracts with their parents or guardians, which include not only instruction, properly so called, but support for the time during which the educational process is in operation. From the nature of the case, it is impossible to educate these children in one place and support them in another. The main object, which is education, includes the incident of support for the time being, since the two things are inseparable. The institution does nothing for charity. It educates blind children for a fixed compensation under an agreement, express or implied, purely as a matter of business. The state is one of its patrons for the reason that, having assumed the obligation to educate the blind as well as all other children within its borders, it can discharge that obligation as well or better by employing the relator than by building and maintaining like institutions of its own. Hence, it sends, through its constituted authorities, children to this institution under contracts and when they are received they are on precisely the same footing as the children placed there by parents or guardians. It pays for their instruction and, incidentally, for their support while in the institution, *Page 48 not from any motives or upon any principles of charity, but in order to promote its own interests by preparing the children to assume the duties of citizenship, to engage in the affairs of life and, so far as possible, to help themselves in the world, instead of becoming a charge upon the public. It was only upon this theory that the legislature could lawfully have authorized the payment of the large sum already mentioned to this institution, since, as we shall presently see, if the relator is a charitable institution and the money was given and received for a charitable purpose, the legislature, in appropriating it, and the state comptroller, in disbursing it, violated the plain restrictions of the Constitution; and yet no question is raised here as to the legality and propriety of these payments by the state.

The contention of the defendant is limited to the money raised by the county, under the third section of the act, for the purpose of furnishing clothing to certain of the pupils admitted upon the appointment of the Superintendent of Public Instruction, when, in his opinion, the parents or guardians of any of the children so admitted shall be unable to furnish it. The argument is, that since this money, raised by local taxation, is to be paid to the institution for the purpose of defraying the expense of clothing such children as may be unable to procure the proper clothing otherwise, it is a gift for charitable purposes, and the institution receiving it becomes a charitable institution.

This contention is, I think, quite inadmissible. The discipline of the institution requiring a uniform dress is incidental to the process of education, and, from the nature of the case and the circumstances in which the children are placed, a part of the obligation which the state has assumed and may devolve upon the locality. But money paid for clothing under such conditions is not charity any more than money paid for books or other means of instruction would be. Should the state or a county assume the obligation to furnish books or even clothing for certain poor children in order to enable them to attend the common schools, it would not be a gift to *Page 49 charity, and the schools would not thereby be converted into charitable institutions, nor could the children benefited by the contribution be properly classed as paupers. They would, indeed, be properly classed as beneficiaries of the system of free education enjoined by the Constitution; but that is quite a different thing. The obligation to maintain a system of free education for all may properly carry with it many incidental things involved in or connected with the main object.

The consideration of the provision of the present Constitution on this and kindred questions is now in order, as it is upon these provisions that the contention of the defendant mainly rests. They are to be found in certain sections of article eight, and so far as they have any relation to the questions in this case read as follows:

"Section 9. 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. This section shall not, however, prevent the Legislature from making such provision for the education and support of the blind, the deaf and dumb, and juvenile delinquents, as to it may seem proper. Nor shall it apply to any fund or property now held, or which may hereafter be held, by the State for educational purposes."

"Section 10. No county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation, or become directly or indirectly the owner of stock in, or bonds of, any association or corporation; nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes. This section shall not prevent such county, city, town or village from making such provision for the aid or support of its poor as may be authorized by law. * * *"

"Section 11. The Legislature shall provide for a State Board of Charities, which shall visit and inspect all institutions, whether State, county, municipal, incorporated or not incorporated, which are of a charitable, eleemosynary, correctional or *Page 50 reformatory character, excepting only such institutions as are hereby made subject to the visitation and inspection of either of the commissions hereinafter mentioned, but including all reformatories except those in which adult males convicted of felony shall be confined; a State Commission in Lunacy, which shall visit and inspect all institutions, either public or private, used for the care and treatment of the insane (not including institutions for epileptics or idiots); a State Commission of Prisons who shall visit and inspect all institutions used for the detention of sane adults charged with or convicted of crime, or detained as witnesses or debtors."

"Section 13. Existing laws relating to institutions referred to in the foregoing sections and to their supervision and inspection, in so far as such laws are not inconsistent with the provisions of the Constitution, shall remain in force until amended or repealed by the Legislature. The visitation and inspection herein provided for, shall not be exclusive of other visitation and inspection now authorized by law."

"Section 14. Nothing in this Constitution contained shall prevent the Legislature from making such provision for the education and support of the blind, the deaf and dumb, and juvenile delinquents, as to it may seem proper; or prevent any county, city, town or village from providing for the care, support, maintenance and secular education, of inmates of orphan asylums, homes for dependent children or correctional institutions, whether under public or private control. Payments by counties, cities, towns and villages to charitable, eleemosynary, correctional and reformatory institutions, wholly or partly under private control, for care, support and maintenance, may be authorized, but shall not be required by the Legislature. No such payments shall be made for any inmate of such institutions who is not received and retained therein pursuant to rules established by the State Board of Charities. Such rules shall be subject to the control of the Legislature by general laws." (Art. 8.)

"Section 1. The Legislature shall provide for the maintenance and support of a system of free common schools, *Page 51 wherein all the children of this State may be educated." (Art. 9.)

"Section 4. Neither the State nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught." (Art. 9.)

It will be seen upon a careful reading of these sections that two vital points involved in this case, and which, in my opinion, control the decision, are made perfectly clear.

1. The prohibition against payments of public money by cities or other political divisions of the state to institutions where the inmates have not been received and retained therein, pursuant to rules established by the State Board of Charities, applies only to charitable, correctional or reformatory institutions, wholly or partly under private control, for care, support or maintenance. The institutions subject to visitation and regulation by that board must belong to the class specified, and the inmates must have been received and retained therein for the purpose specified, that is, for care, support and maintenance. The relator is an educational institution and the inmates are received and retained therein for the purpose of education and instruction and not as poor persons or for care, support ormaintenance. We have already seen that they could not lawfully have been placed in this institution for any such purpose. If their parents or guardians were unable to support or maintain them they should have been placed in some institution for the indigent blind. The state, in selecting children for instruction in this institution, cannot take into consideration the poverty or wealth of the child.

The relator is not an asylum for the relief of poverty or want in any form or in any degree, but a school for the education of the blind, and the state, when extending the benefits of such an institution to a limited number of the children that it assumes to educate, has no right to place upon them, or *Page 52 any of them, a badge of pauperism any more than the general government has the right to send the West Point graduates out into the world as poor scholars or the beneficiaries of charity.

2. The restrictions contained in the Constitution upon the payment of public moneys to private institutions, except that contained in § 4 of article 9, have no application to appropriations or moneys for the education of the blind. The broad and sweeping prohibition of the section last referred to against payments to certain religious institutions doubtless apply to all public moneys or property and to every form of public aid, but obviously it has no application to this case since the relator is not an institution that comes within the words of the section.

It is suggested that it was the intent and purpose of the constitutional provisions above cited to subject all institutions receiving public aid in any form, whatever their character may be, to visitation and regulation by the State Board of Charities, but this proposition is clearly indefensible. Schools, academies, colleges and other educational institutions receive public money from the state or localities, but no fair construction of the Constitution can bring them within the scope of the powers vested in the department of charities. Nor is it at all necessary in furtherance of any sound public policy to resort to any strained construction to accomplish such a result. They are all subject to visitation by the head of the educational department and thus every public interest is amply protected. (Laws of 1894, ch. 536, art. 14, § 40.)

There is another view of the case that is entitled to great weight in the inquiry whether the relator is a charitable institution or one for educational purposes. It cannot be held that it is of a charitable nature without condemning as unconstitutional and void the acts of the legislature passed in every year since the enactment of the statute of 1870, the action of the State Comptroller in paying the money so appropriated to this institution and all existing laws providing for or requiring such payments. This result must inevitably follow the conclusion that the relator is a private charitable institution, if that view should prevail. *Page 53

1. It was held in the case of Shepherds' Fold v. Mayor (96 N.Y. 137) that the state could not appropriate and pay from its treasury public money for the support of the poor in a private charitable institution for the reason that the Constitution forbids it, but that such prohibition did not apply to moneys raised by local taxation. In so far as the state is concerned the Constitution is the same now as it was then. But we have seen that the state has appropriated, and that the State Comptroller has paid in every year since the act of 1870 was passed, moneys to this institution as compensation for the support of the children placed there by the Superintendent of Public Instruction, which amounts in the aggregate to the sum above stated. Now, if the relator is a charitable institution and the money was paid for the support of the poor, or as charity to relieve distress, the Constitution was clearly violated and the money paid without authority of law. It is only upon the theory that the money was paid to a private educational institution as compensation for the education of blind children that the payment by the state of such a large sum of money to the relator can be justified or defended. In my opinion it was properly appropriated and paid upon that principle, since the payment of money for the education of the blind is expressly excepted from the restrictions of the Constitution.

2. The third section of the act of 1870, which requires the city of New York to raise the money in controversy to defray the expense of clothing certain children placed in this institution, is clearly mandatory, and as mandatory laws for such payments by cities or counties to charitable institutions are now forbidden by the Constitution, the statute is abrogated entirely. (Peopleex rel. Inebriates' Home v. Comptroller, etc., 152 N.Y. 399.) But if it should be considered as a statute requiring the city to raise money for the education of blind children, as I think it should be, the Constitution does not invalidate it.

3. The act of 1870, in so far as it requires the city of New York to raise and pay money for clothing pupils in this institution, has virtually been superseded by the recent statute, *Page 54 known as the charter for Greater New York, which requires the city in each year to raise and pay to the relator $50 for each state pupil in the institution from that city whose parents, in the opinion of the Superintendent of Public Instruction, shall be unable to furnish them with suitable clothing, to be by it applied to furnishing such pupils with suitable clothing while in said institution. This is also plainly a mandatory enactment, and is clearly a violation of the Constitution if the relator is to be classed as a private charitable corporation. But if the money thus provided for should be regarded as a contribution for the education of the blind within the limits of the new city, as it clearly should be, the validity of such a provision is beyond question. But it is only upon this theory, which is wholly inconsistent with the defendant's contention, that the statute can be maintained. (Laws 1897, ch. 378, § 230, par. 22, sub. 6.)

4. The charter also contains another provision which in its relation to the question under consideration is worthy of notice. By § 1161 the board of education is required to distribute to the managers of this very corporation a ratable proportion of the school fund to every blind pupil in the institution without regard to age. Assuming, for the purpose of the argument, that it is a charitable institution, as claimed by the defendant, this enactment is clearly in violation of the Constitution for two reasons: (1) It is mandatory, requiring a local board to distribute funds in its hands or under its control for local school purposes to a private charitable institution for charitable purposes. (2) It diverts the school fund to charitable uses in disregard of the express inhibition of the fundamental law. (Con. art. 9, § 3; People v. Board Ed. of Brooklyn, 13 Barb. 400; Gordon v. Cornes, 47 N.Y. 608; People ex rel.S.A. Observatory v. Allen, 42 N.Y. 404.)

It is only upon the theory that the institution is a school for the education of the blind that a statute, virtually providing that the pupils shall share in the public moneys for school purposes in the same way and in the same proportion as the children educated in the common schools, can be upheld. *Page 55

It ought not to require argument to prove that money raised by taxation for school purposes, or derived from the income of the school fund, cannot be devoted to charity or paid for the benefit of a charitable institution. Such a diversion of a fund would be a manifest fraud upon the taxpayers, even if there were no constitutional restrictions in the way, and yet that is precisely what the legislature has done by this section of the charter if the relator be a charitable institution, and the money is to be paid to it for a charitable purpose.

But if the legislature has authorized it to be paid to an educational institution and for the purpose of educating blind children, as I think it has, then it was devoted to the very purpose for which it was intended when raised. This provision of the charter cannot be sustained upon any other principle under the restrictions of the Constitution.

It is quite apparent from what has been stated that the legislature, the recent commission of eminent citizens charged with the important duty of preparing a charter for the new city, as well as the chief financial officer of the state, have all acted upon the theory, in dealing with this institution, that it was an educational and not a charitable corporation. This theory underlies all the legislation referred to, and in administration has been assumed or adopted by every agency of the state.

The learned counsel for the defendant have evidently overlooked an important feature of this case, which has been incidentally referred to in the preceding discussion, but which should perhaps be stated with more distinctness.

The legislature, in providing money for the education of the blind, is a law to itself. It is left perfectly free to act as it may think proper, and is not bound by any of the constitutional restrictions or limitations referred to. The language of the Constitution is so clear on this point that it is impossible to misconceive the meaning.

"Nothing in this Constitution contained shall prevent the Legislature from making such provision for the education and support of the blind * * * as it may deem proper." *Page 56 Thus the legislature is given free scope in making provision for the education of the blind. It may grant money for that purpose to public or private institutions, to be raised by general or local taxation. It may direct the payment of such money to such institutions without any conditions whatever, except such as it may itself see fit to impose. The constitutional condition that payments shall not be made unless the inmates are received and retained under the rules of the State Board of Charities, is in that case silent. Neither that nor any of the other restrictions have any application to grants of money for the education of the blind. All appropriations for that particular purpose are subject only to the judgment and discretion of the legislature. In the case at bar the legislature has enacted that certain moneys raised by local taxation shall be paid to the relator. It has granted the money and made it payable without any conditions whatever. But the defendant, as the administrative officer who has charge of the fund, refuses to pay it over unless certain conditions have been complied with by the relator. These conditions, by the very words of the Constitution, have no application to moneys raised for this particular purpose, and the legislature itself has not attached any such conditions to the grant.

Thus the defendant of his own will requires the relator, before it can receive the money granted to it by the legislature, to comply with certain conditions or rules that, so far as the relator is concerned, have no foundation in the Constitution or any statute.

The legislature has provided, as we have seen, by general laws that institutions for the education of the blind shall be subject to visitation by the Superintendent of Public Instruction, but that is not made a condition of the payment of the money in question. It has also provided that charitable institutions shall be subject to visitation by the State Board of Charities (Laws 1896, ch. 546, art. 1, §§ 2, 10), but that is not made a condition upon which the relator is to receive the money in question. One of these statutes (Laws of 1895, ch. 771, § 11) provides that institutions for the blind shall be subjected *Page 57 to such visitation by the State Board of Charities as theConstitution provides. It provides for inspection ofcharitable institutions, and those include only such institutions as are devoted to the care and support of theindigent blind as part of the poor, not blind children who are being educated at the public expense in whole or in part. The relator has charge of a large number of blind children who have been placed there, and are paid for by parents or guardians. That class constitute the vast majority of the pupils. If there were no others, surely no one would then claim that it was a charitable institution. It would be absurd to assert that, when every pupil paid his own way, there was any element of charity connected with the relator's operations. Manifestly it would then be a private school for the blind, and nothing else. But how can it be said that when the state becomes a patron of such a school, and sends children there, that it has assumed an obligation to educate and makes contracts for their education and support while in the institution, just as parents and guardians make contracts, that the character of the institution is changed from a private school to an institution of charity. It is more reasonable to say that the state may educate a few of its unfortunate blind children in a private school for that purpose, without classifying them with the objects and beneficiaries of charity. But, apart from all this, can there be any doubt that it is perfectly competent for the legislature to pass a mandatory act providing for the support and education of the blind by taxation upon a city, town or county, and directing the money to be paid to a private institution, such as the relator is, irrespective of any rules of the State Board of Charities? The Constitution answers the question by expressly enacting that nothing therein contained shall prevent the legislature from doing that very thing, and if it may do that, then the relator is entitled to receive the money in question without compliance with any conditions whatever, since the restriction upon payments by localities, without compliance with the rules of the board of charities, has no application to such a case. The plain meaning of the Constitution is that *Page 58 the legislature may place blind children in such institutions as it may think proper, whether public or private, charitable or non-charitable, and provide for their education and support with public money raised either by general or local taxation, and it may direct that money to be paid to the institutions in which such children have been placed, without compliance with the rules of the board of charities, or any other condition whatever. Nothing in the Constitution can prevent the legislature from executing its own policy, whatever it may be, when making provision for educating the blind. The relator is most clearly a private corporation or institution of some kind. It has no public or political functions of any kind to perform. It has no relations with the state save those which every other private corporation has. The income which it receives, and the funds which it has or owns, are derived solely from the prosecution of its corporate business, which is the education of blind children. It does not depend upon or derive anything, so far as appears, from charitable gifts or donations, public or private. It is not engaged in dispensing the gratuities of the benevolent or charitable grants from the state, but is conducting its operations with its own means. It receives pupils from parents and guardians, and from the state, and educates them for pay. It receives nothing from charity, and gives nothing to charity.

Whatever moneys it receives from the state or from localities it receives for the same purpose and in the same way as that from parents and guardians, and it renders to the state the same services and returns the same equivalent.

It is not bound by any law to receive pupils from the state or to retain those which it has received, but may discharge the state pupils at any time, and then, certainly, it would be nothing but a purely private school, supported by the private contributions of the parents and guardians, and, certainly, it would then be impossible for any reasonable man to consider or classify it as a charitable institution. But the true character of the institution, whether charitable or educational, is not to be determined by the presence or absence of a few state pupils, *Page 59 but by the general objects of its incorporation and the nature of the business in which it is engaged.

It cannot be a charitable institution to-day and an educational institution to-morrow, depending always upon the circumstance whether the state is or is not one of the patrons of the school. It is always either the one or the other, and if it is not charitable when no state pupils are retained, it is not made such by the mere fact that the state makes use of it for the purpose of discharging its obligations to provide for the education of all the children within its limits.

There is nothing to show that any of the state pupils could not have been supported and maintained by the parents and guardians at home, but that would not comply with the policy of the state to see to it that even blind children should receive the benefit of an education so far as possible.

The restrictions with respect to payments by localities to charitable, correctional and reformatory institutions, without compliance with the rules of the State Board of Charities, had no reference whatever to such institutions as the relator. This, I think, is clear, not only from what has been said, but from the very language of the Constitution itself and the relation which the restrictive words bear to the rest of the section in which they appear. The first sentence of the section takes every provision for the education of the blind out of every restriction in the Constitution, and leaves the legislature at liberty to deal with that subject at discretion. The rest of the section deals with other classes of persons and other institutions, namely, orphan asylums, homes for dependent children or correctional institutions, whether under public or private control, and localities are permitted to make provision for the care, support, maintenance and secular education of their inmates. Having taken these specified institutions out of the general restriction in section ten of the article against loans or gifts of money by cities, towns or villages to individuals, associations or corporations, the remainder of the section simply regulates the manner in which such gifts or grants to such institutions shall be made. It provides, first, that the legislature *Page 60 may authorize but shall not require them; and, secondly, that the money shall not be paid to the institution unless the inmates are received and retained therein pursuant to the rules of the department of charities. The framers of the Constitution, in prescribing the regulations, applied them specifically to "charitable, eleemosynary, correctional and reformatory institutions, wholly or partly under private control," and again to "such institutions," but it is manifest that these terms are simply descriptive of the institutions specifically named in the preceding part of the section, that is, orphan asylums, homes for dependent children and correctional institutions, and were not intended to include schools for the education of the blind. This section of the Constitution simply provides that the legislature may authorize, but not require, localities to provide for the support and secular education of the inmates of orphan asylums, homes for dependent children or correctional institutions, but that payments shall not be made to them unless the inmates are received and retained under the rules of the board of charities.

The restriction applies only to those institutions specifically named in the section, for the benefit of which localities were permitted to raise money. It could not possibly apply to the relator, since, by the express words of the first part of the section, the legislature was completely emancipated from all restraints when providing for the support and education of the blind. We are concerned in this case with but one question, and that is, whether a financial officer like the defendant may withhold money in his hands from the relator when it has been appropriated by the legislature unconditionally, until it complies with the regulations of the state board of charities. In other words, whether the restriction upon payments by localities to charitable institutions has any application to the relator. It seems very clear to me that it has not. It was manifestly intended for another class of institutions since all restrictions upon legislative provisions for the education of the blind were removed and the whole subject left with the legislature. It seems to me impossible, therefore, by any fair process *Page 61 of reasoning or argument to classify this institution among those designated in the Constitution as charitable, correctional or reformatory, or to include the pupils placed and retained therein among the beneficiaries of charity, or to apply the restrictions of the Constitution to such a case.

This discussion has assumed a scope and extent that might seem, at first view, to be wholly unnecessary. The only purpose has been to elucidate a question of some public importance, closely related to legislation and administration, and with respect to which there is not only a wide divergence in the views of counsel, but, apparently, some conflict of opinion among ourselves. If the discussion has contributed anything tending to reconcile opposing views, or to point out the correct solution of the question, it is to be hoped that the fault of prolixity may be overlooked.

The order should be affirmed, with costs.

MARTIN, J., reads for reversal. All concur, except O'BRIEN, J., who reads for affirmance, and GRAY, J., absent.

Orders reversed.