Burd Orphan Asylum v. School District

• Decision Date: 07 June 1880
• Citation: 90 Pa. 21
• Parties: The Burd Orphan Asylum <I>versus</I> The School District of Upper Darby.
• Court: Pennsylvania Supreme Court

90 Pa. 21

The Burd Orphan Asylum versus The School District of Upper Darby.

Supreme Court of Pennsylvania.

March 24, 1879.

May 5, 1879.

June 7, 1880.

March 24th 1879.

Before SHARSWOOD, C.J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Common Pleas of Delaware county: Of January Term 1877, No. 50.

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Ludovic C. Cleemann, for plaintiffs in error.—A private corporation may be denominated a public charity. "Public," in this connection, cannot mean "universal," and it is not at all inconsistent with the idea conveyed by the word "public," that it should mean one class of many into which the public is divided. Thus a blind asylum is only for the blind in the community; a deaf and dumb asylum, for the deaf and dumb only; a hospital, for the sick and injured; a sailor's "snug harbor," for sailors only: Attorney-General v. Pearce, 2 Atk. 87; Ommanney v. Butcher, Turn. & Russ. 260; Dartmouth College v. Woodward, 4 Wheat. 670.

It is not inconsistent with the idea of a public charity that it should be confined to the poor of a particular township: County of Lawrence v. Leonard et al., 2 Norris 206. A public charity is one where those who are to take are strangers to the donor or testator: Philadelphia v. Fox, 14 P. F. Smith 170; Allen v. McKean, 1 Sumn. 296. This institution does not exclude the public. There certainly could be no more general and comprehensive description of a class than the third, for which provision is made, viz.: orphan children, between certain ages, without respect to any other description or qualification whatever. The direction to take from the other classes, is only where the number applying is too great and simply furnishes a means of selection. Such has been the practical construction placed upon it by the trustees, and there are now children within the asylum from all parts of the state. If among those applying there are orphans of clergymen of the Protestant Episcopal Church, they are to be preferred; but if none of these apply, there is no preferment or exclusion. There are no cases cited by the defendant in error in which a preference was not given to a portion of the public to the exclusion of the rest: as hospitals for the blind, institution for the poor of a certain district, &c.

This case falls directly within the definition of a "purely public charity," as given in the case of Donohugh v. The Library Co., 5 Norris 306. The court was of opinion in that case that the word "purely" was used to exclude charitable institutions, apparently public, but in which there was mixed up some private gain. Here the property of the asylum is devoted exclusively and entirely to the maintenance of orphan children.

The public character of this institution cannot be taken away because a peculiar faith is taught therein. Such a consideration cannot influence the determination of this question: Magill v. Brown, Brightly 346; sect. 3 of Constitution; Warde v. Manchester, 56 N. H. 508; Price v. Maxwell, 4 Casey 28; Foreign Missionary Society's Appeal, 6 Id. 425; McGirr v. Aaron, 1 P. & W. 49; Beatty v. Kurtz, 2 Pet. 580.

A. Lewis Smith, for defendant in error.—Admission to this institution is qualified and governed by a religious test, and the question for decision is whether such an institution is, or can be "a purely public charity." The essential feature of a public use is that it is not confined to privileged individuals, but is open to the indefinite public. It is this indefinite or unrestricted quality that gives to it its public character: Donohugh v. Library Co., supra; Philadelphia v. Fox, 14 P. F. Smith 169; Babb v. Reed, 5 Rawle 151.

The constitution forbids any preference or appropriation to any denominational or sectarian institution. Yet the distinguishing feature of this charity is the sectarian character engrafted upon it by its donor. It is pointedly exclusive in its requirements as to religious connection. It is delusive to rest upon the third qualification for admission as showing the public character of the institution. The most exclusive religious establishment conceivable could be made a public charity if that kind of interpretation is to govern. The donor has only to place the public so far off that they will never be reached, and his gift will be secured from taxation all the same as if exclusively public. No court could graduate the scale or determine the limit.

In the Donohugh Case, the word "purely" was construed to mean "completely, entirely, unqualifiedly." Are we at liberty to give this most emphatic word a qualified or secondary meaning, and especially one not in harmony with the other parts of the constitution? It is said that it was inserted to exclude institutions administered for private gain. But these are not "public charities" at all, and the word "purely" in that connection becomes useless. It is conceded that a private institution may be a public charity, but it cannot be a purely public charity unless it can be administered as the state herself would administer it, were she the trustee or founder of it.

Mr. Justice TRUNKEY delivered the opinion of the court, May 5th 1879.

The clear and convincing opinion of the learned judge of the Common Pleas comprises all that need be said in support of the judgment. He puts the case on the true ground, namely, that the charity is not purely public, for the reason that it is practically limited to white female orphan children, who shall have been baptised in the Protestant Episcopal Church. His reasoning upon the essential point, accords with the doctrine of Donohugh's Appeal, 5 Norris 306, where it was held that private institutions for purposes of purely public charity, and not administered for private gain, may be exempted from taxation. It was there said, "The essential feature of a public use is that it is not confined to privileged individuals, but is open to the indefinite public. It is this indefinite or unrestricted quality that gives it its public character. The smallest street in the smallest village is a public highway of the Commonwealth, and none the less so because a vast majority of the citizens will certainly never derive any benefit from its use. It is enough that they may do so if they choose. So there is no charity conceivable which will not, in its practical operation, exclude a large part of mankind, and there are few which do not do so in express terms, or by the restrictive force of the description of the persons for whose benefit they are intended. Thus, Girard College excludes by a single word, half the public, by requiring that only male children shall be received; the great Pennsylvania Hospital closes its gates to all but recent injuries, yet no one questions that they are public charities in the widest and most exacting sense. * * * Next, and last, we have to consider the force to be given to the word `purely' in the constitutional phrase, `purely public charity' In this connection, and in its ordinary sense, the word purely means completely, entirely, unqualifiedly, and this is the meaning we must presume the people to have intended in adopting it in their constitution." Per Mitchell, J., in C. P.

From the foregoing, it is at once seen that a public use, whether for all men or a class, is one not confined to privileged persons. The smallest street is public, for all have an equal right to travel on it; but a way used by thousands, which may be shut against a stranger, is private. Would Girard College be a public charity if the male children entitled to admission were limited to sons of deceased Masons or Odd Fellows? If Pennsylvania Hospital closed its gates to all but Methodists or Baptists, having recent injuries, the people would not believe it a purely public charity in the intendment of their constitution. A charity for the poor of a parish or township is public; but not, if confined to poor Presbyterians in the municipality.

Public charities may be restricted to a class of the people of the state or of a municipal division; at the same time, they must be general for all of the class, within the particular municipality. "Thus, a blind asylum is only for the blind in the community." If it be completely public, all the blind in that community are on an equal footing, and should its capacity be insufficient for all, there is no mistaking justice in the order of admission. To open its doors only to the blind of a particular religious denomination, or of a beneficial association, or of a political party, shuts them against the public. A known and recognised class, though not generally poor, or diseased or decrepit, may be the subject of a public charity, as sailors; yet if the endowment were limited in its benefits to sailors who are members of a designated sect, there could hardly be two opinions of its character.

Private or individual gain in a pecuniary sense, is not the sole test. "The true test is to be found in the objects of the institution." Where these are to advance the interest of a party, of an association, of a private corporation, of a religious denomination, and the like, however beneficial to the public their growth and success may be, there is a private object to gain; the institution is not unqualifiedly public. In such cases the purpose is wholly private, or the private blends with the public.

The constitution prohibits appropriations "to any denominational or sectarian institution, corporation or association;" and of money raised for public schools, to be "used for the support of any sectarian school." It forbids exemption from taxation of all property, except such as may be devoted to public purposes and uses. Among the public purposes, "actual places of religious worship" are named, thereby excluding from the exception other property held by religious societies. How can it be said that an institution for the support...