I have no doubt of the propriety of affirming the .judgment rendered at the special term, except so far as it gives to the relators that portion of the school moneys which is received from the revenues of the common school fund. In that respect I consider the decision erroneous, for the following reasons.
The constitution, article 9, provides that the capital of the common school fund shall be inviolate; and the revenue thereof shall be applied to the support of common schools. The act of March 7,1848, (Laws of 1848, p. 85,) under which the relators claim, declares that “ the orphan asylum societies of the city of Brooklyn shall participate in the distribution of the school moneys raised in said city, in proportion to the number of chil*409dren between the ages of four and sixteen, who have been under the charge of said societies during the past year, and instructed in such manner as is usual in common schools; and shall hereafter be annually entitled to such distributive share, in the same manner and to the same extent as is now or shall be provided in respect to the common schools of said city.”
Two questions now arise; first, whether this act intends to bestow a share of the public moneys arising from the state fund; and secondly, if such be its design, whether it is not inconsistent with the above article of the constitution.
1. As to the first inquiry, if we follow the safe and wholesome rule of adopting the restricted construction of a statute, when the more liberal one will bring us in conflict with the fundamental law, we will at once conclude that the act was not designed to reach the fund in question. Nor is there any reason for a more enlarged interpretation. The language restricts the right to a share of the moneys raised in said city. And it has full operation, without being applied to the common school fund, upon that portion of the moneys raised for the support of schools by tax upon the property of the city. The terms of the statute are therefore complied with, by this construction, without invading the fund made sacred by the constitution.
2. But if the act of 1848, by a fair construction of its terms includes the revenues of the common school fund, then the statute encounters the constitution. For the school of the relators cannot by any reasonable definition be made to fall within the constitutional meaning of the term “common schools.”
Let us look into the statutes and see what kind of a school they are authorized to keep. The society was incorporated by the act of May 6, 1834, which gives it power to prescribe rules and regulations for the admission of members, and for expelling them for the non-observance of its laws; and its objects are declared to be “the purpose of relieving the poor, and of protecting and educating orphan children.” The act of December 15, 1847, section 2 declares that “ every such asylum may make all laws, rules and regulations relative to the education and discipline of their inmates, as a majority of the trustees thereof at their *410annual meeting shall think fit and proper; but such laws, rules and regulations shall not be repugnant to the laws of this state in its policy in reference to public and primary instruction, and shall be subject at all times to the inspection and supervision of the several educational officers of the different villages, towns or cities in which such orphan asylums may be located.”
From these provisions we are enabled to perceive, that this mode of education essentially differs from our common school system, in several particulars. In the first place it is confined to orphans, and of these the trustees of the asylum have the power to admit or reject applicants according to their, pleasure. They may adopt a standard of membership which will admit all of a certain faith or age and exclude all others. In fact they can determine absolutely who shall be the inmates. . Moreover they are not compelled to keep any school at all. All that is required of them is that in case they do make laws and regulations relative to the education of the inmates, whom they have selected, they shall not make such laws repugnant to the policy of the state on the subject of public and primary instruction.
A “ common school,” as recognized by our laws and constitution, is quite a different affair. Our common schools are not confined to any class, but are open to all; the trustees have no power to admit or reject pupils arbitrarily; they have no authority to make rules and regulations fixing a standard of admission for members. They are bound to instruct all the children who present themselves, without regard to their social relations, their station in life or their religious faith. The spirit of our institutions on this point was embodied in the first section of the act of 1849, which declared that “ common schools shall be free to all persons residing in the district over five and under twenty-one years of age.” The word “ common,” as applied to our schools, bears the broadest and most comprehensive signification. . It is equivalent to public, universal, open to all; for such is their character, subject only to such general statutory regulations as are prescribed by the legislature. They are common to all children, in the sense that public highways are common to all persons who may choose to ride or drive thereon,*411observing only the law of the road. Thus have they been treated by the legislature in the various enactments on the subject. They have always been kept distinct from academies, colleges and private seminaries of learning; and especially have they been kept, and ought they to be kept free from every thing savoring of sectarian influence or control. If we are to sustain such a claim as this, on behalf of a Roman Catholic Asylum to-day, we shall probably be called on to-morrow, to .do the same for half a dozen Protestant denominations, who may desire to propagate their own peculiar mews at the public expense. We do not intend to speak disparagingly of these institutions. In their proper sphere they are worthy of all praise and all legitimate support. But we are unable to discover any good reasons why the children supported and protected by these asylums, cannot attend the ordinary public schools of their district. If the object of this special legislation is to afford them such education as the state furnishes to all, it may as well, and better, be obtained through the ordinary channel. If the object is to furnish them with instruction of a partial or sectarian character, the state ought not, and cannot constitutionally, contribute to such a purpose.
[Kings General Term, October 6, 1851.Morse, Barculo and Brown, Justices.]
To say that the legislature can determine what institutions shall receive the proceeds of the school fund: and that whatever they determine to be entitled thereto, becomes ipso facto a common school, is begging the whole question, and annulling the constitutional restriction. For if this were so, they might by a simple enactment, convert all our colleges and academies and all other seminaries into common schools. This cannot be tolerated. The courts must interfere, and preserve the constitution. All experience shows that the legislature will not.
The judgment is therefore reversed, so far as it relates to the moneys received from the common school fund, and affirmed as to the residue.
Morse, J. concurred. Brown, J. dissented.
Judgment accordingly.