
    Auditor of Lucas County v. The State, ex rel. Boyles.
    
      Relief of the blind — Act of April 25, 1904, invalid — Legislative power vested in General Assembly — Powers of taxation — Special legislation — Constitutional law.
    
    1. The legislative power of this state is delegated to the General Assembly. This comprises the taxing power, but the power of the state to take the property of its citizens by a. tax is not broader than the purpose for which the state is formed and so is not wholly within the discretion of the Legislature, but, without express prohibition, is subject to the inherent limitation that it may be exercised only for a public purpose.
    2. The act entitled “An act to provide relief for worthy blind,” passed April 23, 1904 (97 O. L., 392), which provides that all male blind persons over the age of twenty-one years, and all female blind persons over the age of eighteen years, who have been residents of the state for five years and of the county for one year and have no property or means with which to support themselves, shall be entitled to and receive not more than twenty-five dollars per capita quarterly from the county treasury, is unconstitutional for the reason that it requires the expenditure for a private purpose of public funds raised by taxation.
    (No. 9670
    Decided October 16, 1906.)
    Error to the Circuit Court of Lucas County.
    The facts are stated in the opinion.
    
      Mr. William G. Ulery; Mr. James S. Martin and Mr. Holland C. Webster, for plaintiff in error.
    The plaintiff in error contends that the law (97 O. L., 392) is unconstitutional and void, being in conflict with the following provisions of the Constitution of the United States and of the Constitution of Ohio: Article IV, Section 2; Article V of Amendment to the Constitution, and Article XIV, Section 1, Bill of Rights, Section 2.
    It is important in this case to determine the breadth of meaning that attaches to the Bill of Rights in the Ohio State Constitution, and it would appear from the decisions that this Bill of Rights was equally as broad in its meaning as is the first section of the Fourteenth Amendment to the Constitution of the United States. A particularly important case, and one illustrative of this, is the case of State, ex rel., v. Ferris, 53 Ohio St., 314.
    That the court may look at this case from every point of view, we desire to suggest to the court that Section 1 of Article VII of the Constitution of the State of Ohio, provides: “Institutions for the benefit of the insane, blind and deaf and dumb, shall always be fostered and supported by the state.” It is also true that the statutes of Ohio make ample provision for the support and care of the blind, both by laws relating to the Ohio State School for the Blind, as found in Sections 665 and 666 of the Revised Statutes, and by the laws relating to the care of the poor as found in Section 1491 and following sections of the Revised Statutes. The court must necessarily consider these statutes, and such other statutes of the state, as may have been enacted upon this subject, along with the provisions of the Constitution of the United States and the state of Ohio, referred to above, before it will be enabled to arrive at a proper conclusion as to the constitutionality of the act called in question by this suit. The nature of the subject-matter of the act in question, is also of importance. Broadly speaking, there are three principles of constitutional law which we submit are violated by the act under consideration: '
    I. The words “due process of law” as used in Article V of the Amendments to the Constitution of the United States, have been held to prohibit the levy of taxes for any other than a public purpose.
    II. The words “the equal protection of the laws,” as found in Section 1 of Article XIV of Amendments to the Constitution, prohibit unjust discrimination in the expenditure of the proceeds received from taxation, and these words are in themselves a pledge of the protection of equal laws.
    
      III. No law may stand which in its terms shall abridge the privileges or immunities of any citizen of the United States.
    The words “due process of law,” as used in Article V of the Amendments to the Constitution of the United States, have been held to prohibit the levy of taxes for any other than a public purpose.
    Under this principle we earnestly contend that the purpose and object of the law in question in this case, is purely private and for the benefit of the individual and'not for a public purpose, nor for the welfare of the general public. In other words, it is simply a gift, and one which is forbidden not only by the Constitution, but by good morals. If such a classification is to be permitted, its possibilities are without limitation. There is no place where we may call a halt. The variety of dependent classes is unlimited, and no reason exists, if this enactment is permitted to stand, why a thousand laws should not be placed upon the statute books, each providing for relief for a different class, each as dependent as the class in question, and such laws be permitted to stand. Judson on Taxation, 405.
    In the case of The Citizens Savings & Loan Association v. Topeka, 20 Wallace, 655, Justice Miller said that a law authorizing a tax for a purely private purpose is an unauthorized invasion of private rights. People, ex rel., v. Salem, 20 Mich., 452; State, ex rel., v. Switzer, 143 Mo., 287.
    So it has been held that the maintenance of public schools, high schools and normal schools, as indicated in the case of Commonwealth v. 
      Hartman, 17 Pa. St., 118; and Richards v. Raymond, 92 Ill., 612; and Briggs v. Johnson County, 4 Dillon’s Reports, 148, are public purposes, but that a private school was not a public purpose, and the power of taxation could not be invoked in its aid, as indicated by the case of Curtis’s Admr. v. Whipple et al., 24 Wisconsin, 350.
    The United States Circuit Court held in the case of Dodge v. Mission Township, 46 Circuit Court Appeals, 661, that a subscription to the capital stock of a corporation organized to erect public sorghum mills, could not be made and that a tax for that purpose was a tax for a private purpose.
    So it was held in Freeland et al. v. Hastings et al., 10 Allen, 570, that a tax to raise money to pay bounties to soldiers in order to encourage enlistment in time of war, was valid, while in the case of Booth v. The Town of Woodbury, 32 Conn., page 118, it was held that a tax for the payment of bounties to soldiers after the war as testimonial of the public appreciation of their services was held to be void as being a private purpose. Judson on Taxation, page 423.
    In Massachusetts a statute was held valid that authorized a city to erect a memorial hall to the memory of soldiers and sailors. Under authority of this statute, however, the city council appropriated money for a memorial hall to be used in part by a certain G. A. R. Post. Story on the Constitution, 692; Cooley on Constitutional Limitations, 153; Cooley on Taxation (3d Ed.), 204.
    A very sensible treatment of the subject is that in the cases of Philadelphia Association, etc., v. Wood, 39 Pa. St., 73; State, ex rel., v. Bargus et 
      
      al., 53 Ohio St., 108; Board of Education v. State, 51 Ohio St., 539; Story on the Constitution, Vol. 2, 694, et seq.; Chicago & E. Railroad Co. v. Keith, 67 Ohio St., 290.
    The words “the equal protection of the laws,” as found in Section 1 of Article.XIV of Amendments to the Constitution, prohibit unjust discrimination in the expenditure of the proceeds received from taxation, and these words are in themselves a pledge of the protection of equal laws.
    No law may stand which in its terms shall abridge the privileges or immunities of any citizen of the United States.
    This statute, if enacted for any purpose at all, was enacted for the purpose of making provision for a dependent class. Doés it do this? Is it fairly within the various constitutional provisions affecting legislation of this nature? We contend that the law is wrong both in principle and in results.
    Why were the blind selected as a special class for the bestowal of this annual gift of one hundred ($100) dollars? As subjects of charity, have they any greater rights than any other of the dependent classes? Counsel upon the other side, by a very labored argument in the lower court, attempted to sustain this law upon the provision in Section 1 of Article VII of the Ohio Constitution, which provides that “institutions for the benefit of the insane, blind and deaf and dumb, shall always be fostered and supported by the state.”
    Surely counsel will not contend that the above provision of the Constitution will sustain a law which provides for the bestowal of a gift annually upon certain blind persons who come within the provisions of that statute.- We take it the word “institution” has a somewhat different meaning and is not susceptible to the broad construction contended for by counsel upon the other side, but is simply a recognition that the blind as a class should be considered and provided for by the Legislature. In fact, it- might be urged that the Constitution having provided that institutions for the blind should be fostered and supported by the state, that this was a limitation upon the power of the Legislature to provide for the blind in any other fashion. It would therefore appear that the relief provided for in this act, amounts to nothing more than unjustifiable paternalism on the part of the Legislature, that it is capricious and unreasonable, and does not find warrant in existing conditions.
    . In the first place the question naturally arises as to who are citizens under the constitutional provisions referred to above. Story on the Constitution, 683.
    ' Judson sets forth in his work on Taxation, on page 602, that the equal protection of the laws under the Fourteenth Amendment of the United States prohibits an unjust discrimination in the expenditure of the proceeds of taxation, as well as it does unjust discrimination in the making of the levy. Cooley on Constitutional Limitations, 485; Story on the Constitution, Volume 2, 706.
    In the case of Nashville, C. & St. L. Railroad Company v. Taylor et al., 86 Fed. Rep., page 168, the court held that if a statute results in an arbitrary and oppressive discrimination in regard to a large class of citizens, or a large species of property, it is a denial of the equal protection of the laws. Cooley oh Taxation, Volume I, 78; Claybrook et al. v. The City of Owensboro et al., 16 Fed. Rep., 297; Atchison, etc., Railroad Co. v. Clark, Treas., 60 Kan., 826; People v. Bellet, 99 Mich., 151; State, ex rel., v. Schlitz Brewing Co., 104 Tenn., 715.
    These matters have been passed upon in the state of Ohio in a vigorous manner, so vigorous in fact as to lead this court unquestionably, we think, to the conclusion that the law under consideration is unconstitutional and void. State v. Gardner, 58 Ohio St., 599; State v. Gravett, 65 Ohio St., 289; Harmon v. State, 66 Ohio St., 249.
    In a general way all these provisions of the Constitution -are discussed in the following cases in Ohio: Adams v. Nemyer, 35 W. L. B., 31; State, ex rel., v. Board of County Commissioners, 35 Ohio St., 458; State, ex rel., v. City of Toledo, 48 Ohio St., 112; Hixson v. Burson et al., 54 Ohio St., 470; State, ex rel., v. Davis et al., 55 Ohio St., 15; Gaylord et al. v. Hubbard, Treasurer, 56 Ohio St., 25.
    
      Messrs. Whitlock, Milroy & Mallow, for defendant in error.
    The legislative act involved is found in Volume 97, Ohio Laws, page 392. The constitutional provisions which counsel for plaintiff in error assert are violated by the act are these: U. S. Constitution, Article IV, Section 2; U. S. Constitution, Amendment, Article V; U. S. Constitution, Amendment, Article XIV, Section' 1; Ohio Constitution, Bill of Rights, Section 2; Ohio Constitution, Article II, Section 26.
    The contention of counsel is the one usually made when these constitutional provisions are invoked; that is, that the law is not for a public purpose, that it is class legislation, and does not operate uniformly.
    In contending that the law violates no constitutional provisions, we submit the following propositions as being well founded:
    The care of the insane, the imbecile, the blind, the deaf and dumb, and, to a certain extent, of the poor, is recognized by all enlightened governments as among their primary duties, and the power to tax for the benefit of these classes inheres in all governments independently of any written enactment. People v. Salem, 20 Mich., 452; Judson on Taxation, 423; Cooley on Taxation, 3d Ed., 204; State, ex rel., v. Bargus et al., 53 Ohio St., 108; Burroughs on Taxation, Section 25.
    This duty and its corresponding power have-been expressly recognized in the Constitution of this state. Article VII, Section 1.
    In recognizing this duty the Constitution gives the Legislature the widest • discretion in carrying out its provisions and the institutions contemplated may take such form as the Legislature may decide. Constitution, Article VII, Section 1.
    This section enjoins upon the Legislature the establishment of institutions for the benefit of the blind, among others, but the form of these institutions and the manner of conferring this benefit are to be determined by the Legislature in the scope of a wide discretion which the Constitution leaves to it. That is, the details are left to the General Assembly and it is trusted to give these institutions such form or to make such changes in them when formed as necessity and experience may suggest. Thus far practically all of the legislation under this section of the Constitution is found in Title V, Revised Statutes (Section 623 ct seq.), which treats of the subject of benevolent institutions.
    The Supreme Court has said that this provision of the Constitution is not self-executing, and that the mode in which such institutions are to be fostered and supported is left to the discretion of the General Assembly. State v. Kiesewetter, 37 Ohio St., 546.
    We contend that the word “institution” is not to be understood or considered in any narrow or restricted sense. It does not mean merely an imposing building of red brick with a power house and a tall chimney, a superintendent and staff, a code of elaborate rules, an annual deficit and a scandal in the board of trustees.
    This word, vital in considering this law, means, according to the Century Dictionary: “More specifically, an established habit of action, or body of related facts, regulating human conduct in the attainment of a social end, and constituting an element in the social organization or civilization of a community.”
    And Webster defines it as an “organized effort of society, established either by law or the authority of the individual, for promoting any object, public or social.”
    The Supreme Court has recognized this broader meaning of the word whenever it. has been presented to it, and we cite as examples of this recognition two cases. Gerke, etc., v. Purcell, 25 Ohio St., 244; Humphries, Auditor, et al. v. The Little Sisters of the Poor, 29 Ohio St. 206.
    The discretion conferred on the Legislature by the Constitution in this regard is subject to control by the courts, but only a flagrant violation of it will justify judicial interference, and so long as a law is within the spirit and purpose of the constitutional injunction the courts, whether they approve the form the institution takes or not, have no power to interfere. Cooley Constitutional Limitations, 6th Ed., 153, 200; State v. McCann, 21 Ohio St., 198; State v. Smith, 44 Ohio St., 348; Beebe v. State, 6 Ind., 501; Walker v. Cincinnati, 21 Ohio St., 14; Cooley’s Constitutional Limitations, 5th Ed., 201; License Tax Case, 5 Wallace, 462; Perry v. Keene, 56 N. H., 514; In re Peter Townsend, 39 N. Y., 174; Bankhead et al. v. Brown et al., 25 Iowa, 540; Burroughs on Taxation, Section 13; Cooley’s Prin. Const. Law, 57; Tiedeman’s Limitation of Police Power, Section 2; People v. Toynbee, 2 Park. Cr. (N. Y.), 329.
    Even in the absence of this wide discretion, the Legislature, in enacting the act of April 26, 1904, made a classification that is not unreasonable, but is in harmony and consonance with the general policy of the laws on related subjects.
    It is claimed that the law is void because it is class legislation, because the power to tax is used to benefit a certain class, to-wit:
    (a) The blind, and
    
      (b) Those only of the blind who are “worthy;” i. <?., moral, of legal age and residents of the state and county for a certain time.
    
      •The first proposition need not be seriously considered. The Constitution has already fixed the blind as a class in the legislative sense; they are so recognized by the spirit of our land and the policy of modern enlightened states; our own state has already legislated with reference to them or with reference to certain of them, has taxed the people for their support and education, and these laws have universally been upheld whenever questioned.
    To say now that this act is unconstitutional because it affects the blind alone, and makes a class of the blind, is to say that the laws creating asylums for the insane, the deaf and dumb, the epileptic and other classes of unfortunates and defectives, are unconstitutional for a like reason.
    Counsel seem to object because the law does not operate equally upon all the poor; that is, to put the point in another way, counsel by inference argue that the act should be aimed at the relief of all the poor, and not at the blind merely, as one class of the poor. It is true, of course, that the act affects only those blind who are poor; but it is not enacted for their relief because they are poor, but because they are blind; that is, it was intended to aid the poor blind, and not the blind poor. The distinction should be kept in mind. So far as the blind are concerned, the only provision made for them is found in Chapter 6, Title V (Section 665 et seq., Revised Statutes), which provides for the Ohio State School for the Blind. An examination of this law shows that certain blind and purblind persons, residents of the state, may be received into the school for the purpose of receiving instruction and the superintendent of the school is made practically the sole judge as to the qualifications of the persons to be admitted to that school. And the act of April 26, 1904, recognizes the fact that there is no legislation for the benefit of the blind aside from the provisions for the state school; this is Section 3, which says (after providing for the residence), “Under no condition or circumstance shall the said beneficiary lose his or her benefits or residence by or through removal to any home or institution for the blind not maintained by the state or county.”
    The Constitution has already fixed the blind as a class; the act establishing the state school for the blind affects this class, not because they are poor, not because they are blind or partially blind. Nor does the act establishing the school operate on all the blind equally; certain restrictions are imposed, or may be imposed, at the superintendent’s will; as already said, the fact that a blind person is able to support himself, or that his friends are able to provide for him, does not debar him from the state school; nor will the fact that he is poor alone entitle him to admission. Many other conditions, are imposed; for instance, he must be of good health, of a certain age, of good morals, etc.; in a word, a classification is attempted in that act which is no more unreasonable than the one attempted in this act.
    It is claimed that there is an unjust discrimination among the blind themselves. Let us see. Laying aside the fact that the Constitution authorizes and enjoins the support and fostering of institutions for the benefit of the blind, under such regulations as may be prescribed by law, let the usual tests-be applied. Cooley’s Prin. Const. Law, pp. 236, 237, and cases there cited.
    Counsel for plaintiff in error for the first time and in this court attempt to interpose objection to the moral requirement of the act. The objection we think needs little discussion. Scioto Valley Railway Company v. Cronin, 7 O. D., Reprint, 226.
    We submit that an examination of the authorities on this subject of classification amply supports the contention that the classification made by this act is wholly fair and constitutional. State, ex rel., Garnes, v. McCann et al., 21 Ohio St., 211; State v. Hipp, 38 Ohio St., 199; Hocking Valley Coal Company v. Rossert, 53 Ohio St., 12; State, ex rel., v. Ferris, 53 Ohio St., 314; Burlington, etc., Railway Co. v. Dey et al., 82 Iowa, 312; Booth et al. v. The Town of Woodbury, 32 Conn., 118; Moushand v. Rodetzky et al., 7 O. D., 225; People v. Bellet, 99 Mich., 151; Cooley Constitutional Limitations, 390; State v. Schlitz Brewing Co., 104 Tenn., 715; In re Sugar Notch Borough, 192 Pa. St., 356; Seabold v. County Commissioners, 187 Pa. St., 318; Commonwealth v. Gilligan, 195 Pa. St., 504; People v. McCreery, 34 Cal., 432; Cyc. of Law and Practice, Vol. 7, 185; Cooley on Constitutional Limitations, Ed. of 1868, 391; State v. Hogan, 63 Ohio St., 210; Barbier v. Connolly, 113 U. S., 27.
    The exemption laws of the state are founded, not upon any consideration of favor to the debtor or individual, not for the benefit of the impecunious only, but apply to all alike who are of the classes and in the situation included and are justified by considerations of the general good. The Legislature has no power to bestow mere charity where it will work injustice to others. It would be an exercise of purely personal and arbitrary power. Where particular persons are picked out and separated so that the law but for such separation or limitation would operate on others, of such class and thus form a class not upon any reasonable basis of difference of characteristics, capriciously, but as matter of will and not of reason, the same is open to the objection above stated. The rule is well settled that where an attempt to make an arbitrary classification by selecting a few of a class and conferring upon them privileges and benefits not conferred upon others coming within the same class, is invalid. Williams v. Donnaugh, 65 Ohio St., 499; State v. Board of Education, 8 N. P., 186; Froelich v. Toledo, etc., Railway Co., 24 C. C., 359; Roe, Admr., v. New York, etc., Railway Co., 13 Dec., 260; Mooney v. Bell et al., 8 N. P., 658.
    The whole question of class legislation and the uniformity of operation of general laws is ably discussed by Judge Hull, in announcing the opinion of the circuit court in Froelich v. Railway Co., supra, and the rule is there laid down that where the classification is reasonable — has some reasonable grounds to sustain it — it will be upheld.
    The following cases also hold that peculiar circumstances which surround certain persons are ample grounds for classification. Williams v. State, 130 Ala., 31; Lewis et al. v. Hartford Silk Manufacturing Co., 56 Conn., 26; People v. Chicago, etc., Railroad Co., 194 Ill., 56; Burns et al. v. Gavin, 118 Ind., 321; State v. Hogan, 63 Ohio St., 202; State v. Henderson, 113 La., 232.
    
      The object and purpose of this sort of legislation is to relieve the citizens at large of a burden which must otherwise rest on them individually. The failure of the state to pass laws to remedy such conditions, as said before, can create no liability on the part of the representatives of the people other than a responsibility to their constituencies for their political conduct. The citizen who is the victim of the unfortunate condition which the law in question seeks to remedy has no legal right to demand that such legislation be made in his behalf. Trustees v. White et al., 48 Ohio St., 577; In re Price v. Farley et al., 22 C. C., 48; Chalfant v. State, 37 Ohio St., 60; Cooley’s Const. Limit., p. 481.
    We desire also to call the attention of the court to the case of Kane, Admx., v. Erie Railroad Co., decided on the 6th of December, 1904, in the United States Circuit Court of Appeals, which is to be found in the Ohio Law Reporter for 13th February, 1905. Probasco v. Raine, Auditor, 50 Ohio St., 390.
    Laws enacted under this power are for a public purpose, although incidentally dependent and defective classes are helped, and where they operate uniformly, do not deprive any one of his property without due process of law, nor take from any citizen the privileges and immunities guaranteed by the law of the land.
    The nature of a statute depends upon the character of its subject-matter; if that be of a general — as distinguished from a local or special nature — existing in every county throughout the state, then the law is of a general nature and must have uniform operation. Kelley v. State, 6 Ohio St., 269; State v. Powers, 38 Ohio St., 54; Costello v. Wyoming, 49 Ohio St., 202; State, ex rel., v. Ellett et al., 47 Ohio St., 90; Falk, ex parte, 42 Ohio St., 638; Lehman v. McBride, 15 Ohio St., 606.
    The present law, while applying and referring only to persons of a certain condition, is of equal force and effect in every county in the state. Uniformity of operation requires that laws shall operate in all parts of the state where are found the conditions which are the subject of‘the legislation. Uniform operation does not necessarily mean “universal” operation. State, ex rel., v. Portsmouth & Columbus Turnpike Railroad Co., 37 Ohio St., 481; Bronson v. Oberlin, 41 Ohio St., 476; State v. Pugh, 43 Ohio St., 112; State, ex rel. Att’y Gen., v. Hudson, 44 Ohio St., 137; Marmet v. State, 45 Ohio St., 66; State, ex rel., v. Bargus et al., 53 Ohio St., 109.
    We contend that the act is not only general in nature and of uniform operation, but that it deprives no citizen of the equal protection of the laws, nor does it deprive him of his property without due process of law; neither does it confer any privileges or immunities of such character as come within- the constitutional inhibition. Trustees v. White et al., 48 Ohio St., 577, in regard to certain qualifications as to age and residence is submitted as sustaining the contention that this is a reasonable and just discrimination if indeed it can be held to be a discrimination at all.
    If the Legislature in passing the act of April 26, 1904, was not exercising the power conferred by Article VII, Section 1, then it was attempting to exercise the policy power and if it made a classification that was not unreasonable the act must stand. Am. & Eng. Ency. Law, Vol. 18, 785; Stone v. Mississippi, 101 U. S., 814; Mayor, etc., of N. Y., v. Miln, 11 Pet. (U. S.), 139.
    The provisions of Section 7, Article X of the Constitution, is no limitation on the powers of the General Assembly, and the Legislature having the power to tax for the purpose contemplated by the act of April 26, 1904, may exercise this power as it does in the act. Cooley on Constitutional Limitations, 601; Burroughs on Taxation, Section 64b.
    
   Summers, J.

In 1904 the General Assembly passed an act entitled: “An act to provide relief for worthy' blind” (97 Ohio Laws, 392). The act provides that all male blind persons over the age of twenty-one years, and all female blind persons over the age of eighteen years, who have been residents of the state for five years, and of the county for one year, and have no property or means with which to support themselves, shall be entitled to and receive not more than twenty-five dollars per capita quarterly from the county treasury on warrant of the county auditor, authorized by the probate judge, and that under no condition or circumstance shall the beneficiary lose his or her benefits or residence by or through removal to any home or institution for the blind not maintained by said state or county.

The probate judge of Lucas county, proceeding under the act, authorized the auditor of that county, to issue a warrant on the treasurer for the payment of twenty-five dollars to the relator. The auditor refused, and thereupon the relator filed a petition in mandamus in the court of common pleas of that county. The court of common pleas overruled a general demurrer to the petition and allowed a peremptory writ, and the circuit court affirmed.

The care of the state for its dependent classes is considered by all enlightened people as a measure of its civilization and it is not doubted that the legislation under consideration was inspired by beneficent if not enlightened motives. This state has provided institutions for the education of the blind; for feeble-minded youth; for honorably discharged soldiers, sailors and marines; a home for soldiers’ and sailors’ orphans; for the care and treatment of the insane; an asylum for epileptics and epileptic insane; a boys’ industrial school; a girls’ industrial home; for the establishment of homes of the friendless; a sanitarium for consumptives; and an institution for the treatment and education of deformed and crippled children. The object of these institutions is sufficiently indicated by their designation, and may be stated to be, generally, to provide places and means where their afflictions may be relieved, or where they may be taught and trained so that they may be self-supporting, or less likely to become a burden on the state, or where their physical wants may be supplied at the public expense. But it does not follow that it would be either wise or constitutional to select out a class, having some particular physical infirmity, and then confer a bounty upon individuals . of that class. If 'a bounty may be conferred upon individuals of one class, then it may be upon individuals of another class, and if upon two, then upon all. And if upon those who have physical infirmities, then why not upon other, classes who for various reasons may be unable to support themselves? And if these things may be done, why may not all property be distributed by the state?

The principal contention on the' part of the auditor is that the law is unconstitutional, because the purpose for which the public funds are appropriated is not public, and because Section 1 of Article VII, which provides, “Institutions for the benefit of the insane, blind, and deaf and dumb, shall always be fostered and supported by the state; and be subject to such regulations as may be prescribed by the General Assembly,” is a limitation upon the legislative power; and upon the part of the relator, that the act is within the legislative power, and, in the absence of a specific prohibition in the Constitution, is wholly within the discretion of the General Assembly, and that Section 1 of Article VII is an express grant of power and sufficiently broad to comprise the act in question.

Section 1 of Article II provides that the legislative power of this state shall be vested in a General Assembly. This comprises the power of taxation. But that extends only to the levying of taxes for the purpose of the state. Section 2 of the Bill of Rights declares that all political power is inherent in the people. Government is instituted for their equal protection and benefit. And Section 1 declares that the right of acquiring, possessing and protecting property is one of the inalienable rights of all men. And Section 19. provides that private property shall ever be held inviolate, but' subservient to the public Avelfare. So that the power of the state to take the property of its citizens by a tax is not broader than the purposes for which the state is formed, and so is not wholly within the discretion of the Legislature, but without express prohibition is subject to this inherent limitation that it may be exercised only for a public purpose.

This view of the law is supported by text-writers and by well-considered cases. Story on the Constitution, 699; Cooley’s Constitutional Limitations, 207; Black on Constitutional Law, 342; Judson on Taxation, 405; Gray on Limitations of Taxing Power, 123, and cases there cited.

Section 1 of Article VII, which provides that institutions for the benefit of the insane, blind, and deaf and dumb, shall always be fostered and supported by the state, is neither a grant nor a limitation of power, but a recognition of the fact that by enlightened people such classes are treated as wards of the state, and is an injunction upon the General Assembly to foster and support 'institutions for their benefit, and it is in obedience to this 'constitutional mandate that the General Assembly has provided for the institutions already enumerated.

The word “institution,” as used in the Constitution, had a popular if not a legal signification, as exemplified in the legislation above referred to, and if Section 1 of Article VII should be held to be a grant of power as well as a mandate, the act in question would not come within its terms.

The controlling question then is, whether the disbursement of the public funds provided by the act in question is for a public purpose.

No rule sufficiently definite, to be susceptible of certain application has been established. But in the leading case, Loan Assn. v. Topeka, 20 Wallace, 655, where the constitutionality of an act of the Legislature of Kansas authorizing a municipality to issue and sell its bonds in aid of a manufacturing corporation was raised, Mr. Justice Miller says: “In deciding whether or not, in a given case, the object for which the taxes are assessed falls upon the one side or the other of this line, the courts must be governed mainly by the course and usage of the government,' the objects for which taxes have been customarily and by long course of legislation levied, what objects,and purposes have been considered necessary to the support and for the proper use of the government, whether state or municipal. Whatever lawfully pertains to this and is sanctioned by time and acquiescence of the people, may well be held to belong to the public use and proper for the maintenance of good government, though this may not be the only criterion of rightful taxation.”

If that rule is applied here, it must be said that the act under consideration is without precedent in this state and that no provision is made in the act to insure the application of the money to the support of the individual, or to prevent him from becoming a public charge, or in any manner to control its use by him. .The act does not direct that the payments shall continue during the lifetime of the beneficiary, nor does it limit the time, nor provide that payments shall cease with the needs of the donee, or provide for any subsequent inquiry. It is an indeterminate gratuitous annuity, a gift pure and simple, and, being so, the Legislature is without authority to make it from the public funds. Other provisions of the act are open to criticism, but as they go to the wisdom of the legislation rather than to the power to enact it, they will not be noticed.

It may be said that funds used for the care of the poor are used for a public purpose, and that moneys used under the provisions of this act will subserve a public purpose for the reason that they will enable many blind persons, aided by their own efforts or those of their friends, to support themselves, and thus to escape becoming a public charge. The wisdom of the legislation is not questioned; the power of the Legislature to so enact is the question presented here, and that an incidental public benefit is not sufficient to save the legislation has also been decided in the case just referred to.

In that case it was claimed that the benefit conferred on the commerce and industry of the town was a sufficient public benefit to warrant the imposition of the tax. Mr. Justice Miller said: “If it be said that a benefit results to the local public of a town by establishing manufactories, the same may be said of any other business or pursuit which employs capital or labor. The merchant, the mechanic, the innkeeper, the banker, the builder, the steamboat owner are equally promoters of the public good and equally deserving the aid of the citizens by enforced contributions. No line can be drawn in favor of the manufacturer which would not open the public treasury to the importunities of two-thirds of the busines men of a city or town.”

If the power of the Legislature to confer an annuity upon any class of needy citizens is admitted upon the ground that its tendency will be to prevent them from becoming a public charge, then innumerable classes may clamor for similar bounties, and if not upon equally meritorious ground, still on ground that is valid in point of daw, and it is doubted that any line could be drawn short of an equal distribution of property.

A few of the many cases more or less illustrative of the application of the rule may be noticed. In Wisconsin Keeley Institute Co. v. Milwaukee County, 95 Wis., 153, an act requiring any county to pay out of the public moneys of the county to a private party not to exceed $170, for every inebriate found therein and treated upon the order and certificate of the county judge thereof, is declared unconstitutional. See also Putney Bros. Co. v. Milwaukee County, 108 Wis., 554; State, ex rel., v. Froehlich, 118 Wis., 129. In State, ex rel., v. Switzler, 143 Mo., 287, an act was held invalid that provided for the payment of certain sums of money in monthly installments to certain students while attending the state university, who were dependent on their own efforts for an education, and financially unable to otherwise obtain the same.

The judgments are reversed and petition dismissed.

Shauck, C. J., Price, Spear and Davis, JJ., concur.  