People Ex Rel. N.Y. Inst. for Blind v. . Fitch

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The question presented in this case involves the consideration and construction of certain provisions of the Constitution and of the statutes by which the relator was organized and continued, and by which it has been supported and the management of its affairs controlled.

These provisions of the Constitution are new, having gone into operation on the 1st day of January, 1895. So far as applicable here they provide: "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." (Art. 8, § 9.)

"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." (Art. 8, § 10.)

Section eleven of article eight provides for a state board of charities, which shall visit and inspect all institutions of a charitable, eleemosynary, correctional or reformatory character, except those for the insane and adult criminals.

Section thirteen provides that the visitation and inspection provided for therein shall not be exclusive of other visitation and inspection (then) now authorized by law.

Section fourteen declares: "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."

After the adoption of the amended Constitution, the legislature enacted a statute which, in substance, authorized the administrative boards or officers of counties, towns and municipalities, in their discretion, to appropriate and pay to charitable, eleemosynary, correctional or reformatory institutions, wholly or partly under private control, for the care, support and maintenance of inmates, but to be made only for such as were received and retained pursuant to rules established by the state board of charities. (Laws 1895, ch. 754.)

In the same year the legislature passed an act to revise and consolidate the laws relating to that board, which, in substance, declared that it should be its duty to visit, inspect and maintain a general supervision of all institutions, societies or associations which were of a charitable, eleemosynary, correctional or reformatory character, whether state or municipal, incorporated or not incorporated, which were made subject to its supervision by the Constitution; that the institutions subject to its supervision should include all institutions, societies and associations which were of a charitable, eleemosynary, reformatory or correctional character or design, and that institutions for the deaf and dumb and blind should be subject to such visitation and inspection by the state board of charities as the Constitution provides. (Laws 1895, ch. 771, §§ 2, 9, 11.)

It is upon these provisions of the Constitution and statutes that the appellant relies. His claim is that, as the inmates of the relator were not received or retained by it pursuant to the rules established by the board of charities, it was not entitled to the relief which has been awarded. That the relator was wholly or partly under private control, and that the inmates for whose clothing it seeks to recover were not so received or retained, are admitted.

This court has already held that the provisions of the Constitution relating to this subject operated presently, so that from the time rules were established by the state board of charities no payments for inmates not received or retained in pursuance thereof would be justified. (People ex rel.Inebriates' Home v. Comptroller, 152 N.Y. 399.)

Indeed, it is practically conceded by both parties that if the relator is a charitable, eleemosynary, correctional or reformatory institution, the decisions of the courts below were incorrect and the orders appealed from should be reversed. That it is either a correctional or reformatory institution is claimed by neither. Thus, the single question to be determined by this court is whether the relator is a charitable or eleemosynary institution.

To a proper understanding of that question it is necessary to ascertain the nature of the New York Institution for the Blind and the purpose for which it was organized and continued. To that end, a brief history of its organization, the management of its affairs, the manner in which it has been supported, and the class of persons who have been its inmates, seems to be required.

In 1831, Dr. Ackley, who had previously been active in organizing and carrying into operation institutions for the education of the deaf and dumb, turned his attention to the matter of the instruction of the blind. Associating with himself a number of other benevolent gentlemen, they sought to establish an institution wherein the unfortunate blind might be educated, and at the same time learn some useful trade or business by which to obtain a livelihood in after years. With this object in view, they procured the institution of the relator to be organized under and by chapter 214 of the laws of that year. The purpose of its organization, as stated in that act, was the instruction of children who were born blind or might have become so by disease or accident, and it required the institution to apply its funds or property to that purpose alone. Its first work seems to have been commenced that year in a small room in Canal street, where children taken from the almshouse were instructed under the control of Dr. John D. Russ, who remained in charge of the institution until its utility was established. Its first president was Samuel Ackley, and there were associated with him, as managers and officers of the institution, gentlemen whose known philanthropy was such as to show quite plainly that the purpose of the institution was a benevolent one, and that it was not intended to be one of profit to the corporators. Although the education of the blind had previously been, to some extent, successfully attempted in Europe, the relator seems to have been a pioneer in that work in this country. An institution had been organized in 1829 in Massachusetts, through the exertions of Dr. John D. Foster, under the name of the "New England Asylum for the Blind," which was subsequently known as the "Perkins' Institution and Massachusetts Asylum for the Blind," but it was not opened until 1832. It was first under the charge of Dr. Samuel D. Howe, who commenced in a private house on Pleasant street in the city of Boston with six pupils. In 1833 a similar institution was organized in Philadelphia through the efforts of Robert Vaux. Thus, the idea of organizing special institutions for the instruction of the blind seems to have occurred to humane and benevolent persons in New England, New York and Philadelphia at about the same time, and without any apparent concert of action. All these institutions were organized and carried into operation through the efforts of the benevolent, and to accomplish a work of charity that had hitherto been neglected in this country.

In 1834 (Chap. 216) the relator was authorized to receive four indigent blind persons from each "senate" district in like manner and at like expense to the state as provided by law for the indigent deaf and dumb. Such indigent blind persons, besides their literary or school education, were to be instructed in some trade or employment taught and carried on in the institution.

At that time the deaf and dumb were furnished with board, lodging and tuition for which the state paid the institution in which they were maintained and educated. (Chap. 234, Laws of 1822; chap. 170, Laws of 1830.)

In 1836 (Chap. 226) twelve thousand dollars was appropriated to be paid to the relator to purchase in fee simple the two acres of ground occupied by it and to defray the expenses of repairing the buildings thereon, the conveyance to be made to the state, and it was to receive from each "senate" district four indigent blind persons in addition to the number then supported by the state to be supported in like manner and at like expense. In the same year, by chapter 399, the preceding statute was amended and partially repealed. It made the appropriation of twelve thousand dollars subject to the condition that the managers should raise eight thousand dollars, which, with the twelve thousand dollars, was to be applied to the purchase of the premises occupied by the relator, to the erection of a workshop, and to repair the buildings thereon. It then provided that the title should be vested in the managers, but that the premises so purchased should be used by them solely for the benefit of the blind and as provided by the third section of chapter 226, which required the managers to receive from each "senate" district four indigent blind persons in addition to the number then supported by the state. The managers were required to report to the legislature each year.

In 1839 (Ch. 200) the relator was authorized to receive from each "senate" district eight additional indigent blind persons, to be educated and maintained in the same manner as provided in the previous statutes, and the sum of fifteen thousand dollars was appropriated to be paid in three annual installments, upon condition that the managers should raise ten thousand dollars, which sums were to be applied to pay for the labor and materials necessary to complete the structure upon the premises and to remove the old buildings thereon. It also provided for clothing such pupils by the counties from which they were sent, the amount not to exceed twenty dollars for each pupil.

In 1841 (Ch. 175) the legislature appropriated to the relator the sum of five thousand dollars for the purpose of leveling and grading the grounds belonging to it, providing necessary fixtures, and erecting and completing a wing to the main building, on condition that the relator should raise the sum of seven thousand dollars to be applied to that purpose.

In 1845 (Ch. 58) there was appropriated to the relator the sum of twenty-five thousand dollars, five thousand dollars to be paid annually for the period of five years, and the managers were required to report under oath to the legislature as to the expenditure of the money so appropriated.

In 1848 (Ch. 193) the act of 1831, organizing the relator, was amended by adding, "and also for the purpose of affording an asylum and employment for other blind persons." By the same act the legislature appropriated to the relator the sum of fifteen thousand dollars to be applied to the erection of work shops and other necessary buildings for providing an asylum and employment for the adult blind.

In 1852 (Ch. 333) the act incorporating the relator was continued, and it was provided that it should receive from each "senate" district four indigent blind persons to be maintained and educated at the expense of the state, the indigent blind persons then in the institution to form a part of the number to be admitted under that act.

In 1859 (Ch. 278) it was provided that the relator might sell or convey its real estate in the city of New York between Thirty-third and Thirty-fourth streets and Eighth and Ninth avenues, when the managers deemed it expedient; that one hundred thousand dollars of the amount received should be invested upon bond and mortgage, eight thousand dollars applied equally to the immediate relief of certain of the adult blind in the institution, the residue expended in the purchase of other real estate for the use of the institution and the erection of suitable buildings, and that any balance should be invested in stocks of the state, or of the cities of Brooklyn or New York for the benefit and use of the relator.

In 1853, $16,640 was appropriated for the instruction of one hundred and twenty-eight pupils in that institution.

And an examination of the various supply bills passed each year from 1853 to the present time, discloses appropriations of from ten to fifty thousand dollars made in nearly every year for the support of the indigent inmates of the relator, and that they were generally made under the title of appropriations for charitable institutions.

In 1867 (Ch. 744) the New York State Institution for the Blind at Batavia was established and a general scheme for the care and education of the blind was inaugurated. By that statute the relator was to continue to have the custody, charge, maintenance and education of the pupils intrusted to it by the state, to be compensated as before, and to receive the same amount from the counties for clothing, until the state institution should be ready to receive pupils, when a portion of them was to be transferred to it. The relator, however, was to retain and to continue to receive all pupils from the counties of New York and Kings, to be maintained and educated by it, and to be compensated by the state for their maintenance and education, and for their clothing by the counties from which they were sent.

In 1870, an act amending the act incorporating the relator authorized it to receive all such blind persons from New York and Kings between the ages of eight and twenty-five years as the superintendent of public instruction should appoint and the managers should deem of sufficient character and capacity for instruction, who were to be maintained, educated and supported by the relator at the expense of the state, with a provision authorizing and directing the supervisors of those counties where, in the opinion of the superintendent, the parents or guardians were unable to furnish them with suitable clothing, to annually raise and appropriate fifty dollars for each pupil, to be paid to the institution and applied in furnishing them therewith.

When the relator's claim arose, article fourteen of title fifteen of the Consolidated School Law (L. 1894, ch. 556) provided that all persons possessing the necessary qualifications, who were residents of New York, Kings, Queens, Suffolk, Richmond, Westchester, Putnam and Rockland counties, should be sent to the institution of the relator; that their board, lodging and tuition should be paid by the state; that appointments to the institution should be made by the superintendent of public instruction, and where, in his opinion, the applicants were able to bear a portion of the expense, he might impose conditions by which some share of the expense of clothing and education should be borne by their parents, guardians or friends.

The period of instruction for such pupils was five years, but it might be extended to not exceeding eight.

During the first thirty-nine years of its existence, the whole number of pupils received by the relator was one thousand and one, being an average of about twenty-six a year. Assuming that each remained in the institution the full term of five years, the average number of pupils in the institution was one hundred and thirty, and about the same number as there were of the indigent blind, who were, before 1870, educated by the relator at the expense of the state. There are now in the institution one hundred and seventy-seven pupils, thirty of whom are residents of the state of New Jersey, and the remainder are from the counties of New York, Kings, Queens, Suffolk, Rockland and Richmond. Of these ninety-five are from New York, and the bill presented by the relator for clothing shows that eighty-eight were indigent pupils, and hence that all the pupils in the institution from the county of New York, except seven, were indigent pupils, educated, maintained and clothed by the state and county.

An examination of the history of the relator, of the statutes organizing and continuing it, and the statutes relating to the management of the affairs of its institution, including the manner of its support and the class of persons who became its inmates, shows that the purpose of its organization was a benevolent one, and that during nearly the entire time, from its organization to the present, it has been supported, and its property purchased and maintained mainly by appropriations made by the state, and that it has been treated and regarded as one of the charitable institutions therein. Indeed, that its purpose was a benevolent one was practically admitted by Mr. Waite, who for many years has been the superintendent of the relator, as in his report for the year 1887 he in substance said that experience had proved that these schools were essential to the well-being of society, and that private philanthropy and public policy could find no work more beneficent and wise in which to unite.

The relator is, doubtless, to an extent, an educational institution. But that fact alone does not justify the conclusion that it is not a charitable institution within the meaning and intent of the Constitution and statutes. An institution may be in a sense educational and at the same time be wholly or partly charitable, as the education and maintenance of indigent pupils, while being educated, may be the subject of charity as well as support alone. An institution may be both educational and charitable, and if so, it falls within the provisions of the Constitution and statutes, as it is to be observed that the provisions are that the board of charities shall visit and inspect all institutions which are of a charitable character or design, and, hence, to fall within that description, it is not necessary that the institution shall be wholly charitable. It need only be an institution which is wholly or partly charitable in its character and purpose.

Nor is the fact that institutions for the instruction of the blind are made subject to the visitation of the superintendent of public instruction controlling in determining this question. It may be conceded that this institution is partially educational and subject to the visitation of the superintendent of public instruction, and yet by no means follow that it is not an institution which is charitable in its character and purpose, and, therefore, also subject to the visitation of the board of charities, as the Constitution provides that the visitation by the board of charities is not exclusive of any visitation then provided by law, which would clearly include the visitation by the superintendent of public instruction.

The obvious purpose of the legislature in incorporating and continuing the relator, as well as in appropriating the money of the state to the purchase of its real estate, to the erection of its buildings thereon, and to the support of its indigent inmates, was to aid in providing for the education of the unfortunate blind, and, so far as necessary, to aid in supporting and maintaining them, at least while acquiring an education. A need existed on the part of these afflicted people for an education, if one could be acquired. To accomplish this, special schools employing special methods and special appliances were required. Without the assistance of the state, or the benefactions of individuals, it could not be obtained. To supply this necessity, the relator was organized, and the expense of the education of its pupils was defrayed by the state and private contributions, as will be seen from the statutes referred to and the decisions of our courts in relation to bequests to it. (N.Y. Institution for the Blind v. How's Executors, 10 N.Y. 84;Riker v. Society of the N.Y. Hospital, 66 How. Pr. 246, 254.) It seems quite plain that an institution thus organized and maintained must be regarded as one of a charitable character within the intent and meaning of the Constitution and statutes.

That the New York Institution for the Blind was regarded by the framers of the present Constitution as a charitable institution, as well as educational, is manifest. The attention of the legislature and of the people had been previously called to the subject of the appropriation of the money of the state to the support of the deaf and dumb and blind. In 1891, Superintendent Draper called especial attention to the fact that more than $262,000 was annually appropriated to the support of these institutions, that the supervision of the state over them was inefficient, and then observed: "The unadvisedness of expending so much money from the state treasury without close state supervision, cannot anywhere be questioned." It is quite obvious that this with other similar suggestions, the discussion of the subject by the public press, and the numerous petitions presented, called the attention of the convention to the necessity for a closer and more efficient supervision of these institutions. This was a subject which, in the language of the president of the convention, "deeply agitated the minds of the people of the state," and led the convention to the adoption of the provisions under consideration. The president, in stating what had been accomplished by the convention, among other things, said: "Besides that, we have secured the regulation of the State Board of Charities to this effect: That wherever any public money is devoted to a private charity for the public service, it shall continue under public control, and the vigilant eye and the strong arm of the people shall be able to follow every dollar of the public money into every institution to which it is so devoted." Again, when we refer to the debates of the convention upon the subject, they show that it was its plain intent to include the relator among the charitable institutions of the state. While referring to the question of the jurisdiction of the state board of charities under the present Constitution, Mr. Lauterbach, who was chairman of the committee on charities, expressly stated that it would have jurisdiction of two institutions for the blind, obviously meaning the relator and the state institution at Batavia, as there seems to be no other in the state.

The arrangement of the provisions of the Constitution, as well as the language employed, indicates the same purpose. It will be observed that sections nine to fifteen of article eight, which contain the provisions as to the education and support of the blind, the deaf and dumb and juvenile delinquents, relate only to charitable, eleemosynary, correctional or reformatory institutions, while no mention is made of educational institutions which are not of a charitable character, and sections one to four of article nine relate to institutions within the state which are purely educational.

Besides, the various officers of the state, whose duties have led them to consider the relation of the New York Institution for the Blind to the state, have, with great uniformity, regarded it as one of the charitable institutions therein. It has been so treated by the several comptrollers of the state, the superintendents of public instruction, the boards of charities, and by the legislature as well, as will be seen by an examination of the reports of these officers and boards and the various acts of the legislature appropriating the money of the state for the purchase and maintenance of its property, and for the support of the indigent inmates therein.

It is doubtful if it can be fairly said that the principle here involved has not already been decided by this court. In N YInstitution for the Blind v. How's Executors (10 N.Y. 84), after reviewing the statute by which the relator was organized and the subsequent statutes relating to its management and the support of its inmates, this court held that the relator was an institution for the support and education of the indigent blind, and was properly described as an institution for the instruction and maintenance of the indigent blind of the city of New York.

In Riker v. Leo (115 N.Y. 93, 102) that case was referred to by Judge GRAY, who said: "It was held that though the act of incorporation did not bring the objects of the institution within those described in the will, that `subsequent legislation had so far modified the charter of the corporation in those particulars that when the will was made these several circumstances had been engrafted upon it and might well enter into a description of its general scope and purposes.'"

In People ex rel. Inebriates' Home v. Comptroller (supra), ANDREWS, Ch. J., quite thoroughly and exhaustively examined and discussed the history of the public charities of the state, and the origin and purpose of the provisions of the present Constitution relating to that subject. The opinion in that case shows quite plainly that the purpose of the framers of the present Constitution was to bring under the supervision of the board of charities all corporations or institutions of the state that were charitable or of a charitable character or design, which were wholly or partly under private control, and to prohibit the payment of any public money for the care or maintenance of any inmate of such an institution who was not received and maintained pursuant to rules established by that board. It also shows that the institutions for the care and education of the blind were regarded as charitable institutions within the meaning of the Constitution and statutes passed in pursuance of its provisions. The opinion in that case is an interesting one, has an instructive and important bearing upon the question under consideration, and seems to practically dispose of it.

Moreover, when we consider the decisions in other jurisdictions and the doctrine laid down by text writers, as to what is a charitable institution or a charitable use or trust, they seem to lead to the same conclusion. Thus, in Asylum v. Phœnix Bank (4 Conn. 172), where a corporation had for its sole object the education and instruction of the deaf and dumb, which supported and instructed indigent persons of that class gratuitously, received a pecuniary compensation from pupils of ability to make it, derived its means of dispensing charity from the donations of individuals and of the public, and applied its funds exclusively to the general object of its institution, it was held that it was an institution of a charitable or eleemosynary character. Russell v. Allen (107 U.S. 163) is to the effect that a gift to be employed in founding an institution for the education of the youth of a county was a charitable gift.

In Vidal v. Girard's Executors (2 How. [U.S.] 127) it was said that donations for the establishment of colleges, schools and seminaries of learning, especially for orphans or poor children, were charities in a judicial sense. In Chapin v.School District (35 N.H. 445) it was held that a gift to promote education was a charity. Gerke v. Purcell (25 Ohio St. 229) is to the effect that a charity, in a legal sense, includes not only gifts for the benefit of the poor, but endowments for the advancement of learning, or institutions for the encouragement of science and art, without any particular reference to the poor, and that schools established by private donations, and which are carried on for the benefit of the public, not with a view of profit, are institutions of purely public charity. The opinion in that case by Judge WHITE is an instructive one upon this question, and he cites many authorities which have a direct bearing upon the question as to what is a charity or a charitable institution. A gift designed to promote the public good by the encouragement of science, learning and the useful arts, without any reference to the poor, is a charity. (American Academy v. Harvard College, 12 Gray [Mass.], 582.) To establish a professorship of the fine arts in a university, or to found an agricultural college, is a charity. (Cresson'sAppeal, 30 Penn. St. 437; Price v. Maxwell, 28 Penn. St. 23;Taylor v. Trustees, etc., 34 N.J. Eq. 101.) In Jackson v.Phillips (14 Allen, 539, 556) GRAY, J., referred to the definition of the word "charitable," as given by Mr. Binney, who defined a charitable or pious gift to be, "Whatever is given for the love of God, or for love of your neighbor, in the catholic or universal sense — given from these motives and to these ends — free from the stain or taint of every consideration that is personal, private or selfish." That definition was approved by the Supreme Court of Pennsylvania in Price v.Maxwell (28 Penn. St. 35). The judge then referred to the rule of Lord CAMDEN, adopted by Chancellor KENT, by Lord LYNDHURST, and by the Supreme Court of the United States, which is: "A gift to a general public use, which extends to the poor as well as rich." (Jones v. Williams, Ambl. 652; Coggeshall v.Pelton, 7 Johns. Ch. 292; Mitford v. Reynolds, 1 Phil. Ch. 191, 192; Perin v. Carey, 24 How. [U.S.] 506.) He then gave his own definition of the word "charity," as follows: "A charity, in the legal sense, may be more fully defined as a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint; by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government." In Dartmouth College v. Woodward (4 Wheaton, 526, 542) Chief Justice MARSHALL held that that college was an eleemosynary and private corporation.

In Angell Ames on Corporations it is said: "Eleemosynary corporations are such as are instituted upon a principle of charity, their object being the perpetual distribution of the bounty of the founder of them to such persons as he has directed. Of this kind are hospitals for the relief of the impotent, indigent and sick, or deaf and dumb. And of this kind, also, are all colleges and academies which are founded where assistance is given to the members thereof, in order to enable them to prosecute their studies, or devotion, with ease and assiduity." (§ 39.) Morawetz, in his work on Corporations, says: "The distinguishing feature of charitable corporations is that they are formed for the administration of charitable trusts, and not for the profit of the corporators themselves; for example, corporations formed for the management of free hospitals and asylums for the relief of the poor, insane, blind, or otherwise helpless." (§ 4.) Kent, in speaking of eleemosynary corporations, says: "In this class are ranked hospitals for the relief of poor, sick and impotent persons, and colleges and academies established for the promotion of learning and piety, and endowed with property by public and private donations." (p. 275.) In Burrill's Law Dictionary, in defining the word "charitable," it is said: "This word, in the expressions `charitable uses,' `charitable trusts,' is understood in a very large sense comprising not only gifts for the benefit of the poor, but endowments for the advancement of learning, or institutions for the encouragement of science and art, and for any other useful and public purpose, as well as donations for pious or religious objects." In Grant on Corporations, 115, it is said: "The legal definition of charity * * * is a gift to a general public use, which extends to the rich as well as poor, and property held for public purposes is held for charitable uses in the legal sense of the term charity." (Attorney-General v. Heelis, 2 Sim. S. 76;Attorney-General v. Mayor, etc., of Dublin, 1 Bligh [N.S.], 312, 357.)

It is doubtless true that in many of the authorities cited the word charitable has been given a broader and more comprehensive meaning than should be applied to it, as it occurs in the Constitution and statutes relating to the subject under consideration. We think that, in determining the question before us, it should be given only its usual and ordinary meaning, and that, when so understood and applied, the relator must be regarded as a charitable institution so far as it clothes, educates and maintains indigent pupils at public expense or by donations from individuals. So far as it educates pupils who pay for their tuition, board and maintenance, it is not to be regarded as a charitable, but only as an educational institution. As to those pupils, the board of charities has no jurisdiction or power of supervision. Being to an extent charitable as well as educational, it clearly falls within the provisions of the Constitution and statutes as an institution of a charitable character or design.

The legislature has not attempted by general laws or otherwise to control the rules established by the board of charities, and, hence, the last sentence of section fourteen of article eight of the Constitution has no application to this case.

The contention of the respondent, that the various appropriations for the support and education of indigent blind pupils in its institution have been made in pursuance of the constitutional obligation to provide for the education of all the children of the state, cannot, we think, be sustained. That provision is as follows: "The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated." (Art. 9, § 1.) Manifestly, this provision has no application whatever to the appropriations made by the state for the support and education of the indigent blind who have been inmates of the institution of the relator. In the first place, that provision is new, having gone into effect in 1895, and, as nearly all the appropriations made for the care and education of the blind by the relator were anterior to that time, they could not have been based upon it. Besides, that provision relates only to the public or common schools of the state, and has no application to an institution wholly or partly under private control.

It seems manifest that the appropriations prior to January 1, 1875, were made independently of the Constitution, because until that time there were no constitutional restrictions upon the power of the legislature to make appropriations of that character. After the amendment which went into effect in 1875, they were made under the special provision of the Constitution as amended, which permitted the legislature to make such provision for the education and support of the blind, the deaf and dumb and juvenile delinquents as to it might seem proper. Since the adoption of the Constitution of 1894 the appropriations have been made in pursuance of a similar provision contained in that instrument. That the legislature had power to devote the money of the state to those purposes under the Constitution as amended in 1874 was clearly recognized in Shepherd's Fold v. Mayor (96 N.Y. 137, 145). In that case RAPALLO, J., said: "The general scheme of the constitutional provisions referred to seems to be that the general funds of the state shall not be given to local charitable institutions, except in aid of the blind, the deaf and dumb and juvenile delinquents." That such institutions were regarded as charitable is to be plainly implied from the language employed.

Again, the provision of the Constitution as to the education of all the children of the state in its common schools is a general one, while the provisions for the education and support of the blind, the deaf and dumb and juvenile delinquents are special, relating only to the classes enumerated. Therefore, it is obvious that, as to persons belonging to those classes, the special provisions must govern to the exclusion of the general one, and the former must be regarded as exceptions to the latter.

The claim that if the institution of the relator is charitable, then all the appropriations made to it by the state since the act of 1870 have been violative of the Constitution, seems wholly untenable. In Shepherd's Fold v. Mayor (supra) it was held that section ten of article eight of the Constitution did not prevent the application of state money to corporations or private institutions for the benefit of the blind, the deaf and dumb, and juvenile delinquents, as it made an exception from the general prohibition in favor of those objects. That seems to be the plain reading of the Constitution. Moreover, it was held in that case that, under section eleven of article eight, the counties, towns and municipalities of the State might devote money raised by local taxation to the support of the poor, and that the payment of money by a municipality to a private corporation for the support and education of orphans or friendless children, or for training and educating the children of poor clergymen, came within the exception permitting it to make provision for the support of its poor, and was not in conflict with that section. Within the principle of that case, it seems clear that the state could appropriate its funds for the education and support of the blind, and that counties might appropriate the sum required for clothing the indigent pupils therein who were residents of the county making the appropriation.

If it be said that the third section of the act of 1870, requiring the counties of New York and Kings to appropriate money to enable this institution to furnish its indigent pupils with suitable clothing, is mandatory, and, hence, in conflict with and abrogated by section 14 of article 8 of the Constitution, as amended in 1894, the answer is, that chapter 754 of the Laws of 1895 is the law which controls, and, as it was intended to give effect to the amendments of the Constitution in that respect, and to cover the whole subject, it operated as a repeal of that section. If, however, this was not so, and the Constitution abrogated section three of the act of 1870, and section 230 of the charter of Greater New York is unconstitutional, I do not perceive how it would in any way change the character of the institution of the relator. It would simply furnish another reason why the decision in this case should be reversed, as, in that event, the supervisors would not be authorized to raise the amount specified.

Another argument presented by the respondent is that the charter of Greater New York authorizes the board of education to distribute a ratable proportion of the school fund to every pupil in the relator's institution, and, hence, it must be regarded as educational and not charitable. The defect in this argument lies chiefly in the assumption of the respondent that an institution cannot be educational and at the same time a charitable one. We have already seen that very many of the educational institutions of the land have been held to be charitable as well. When title four of chapter eighteen of the charter of Greater New York, which contains the provisions referred to, is examined, it shows conclusively that many, if not all, the charitable institutions of the city of New York, which are to any extent educational, are given a ratable proportion of the school fund. It gives a portion of that fund to the schools maintained by the Five Points House of Industry; by the Ladies' Home Missionary Society of the M.E.C.; by the New York Orphan Asylum; by the Children's Aid Society; by the Roman Catholic Orphan Asylum; by the two half-orphan asylums; by the Society for the Reformation of Juvenile Delinquents; by the Leake and Watts Orphan House; by the almshouse for the city of New York; by the Association for the Benefit of Colored Orphans; by the Female Guardian Society; by the New York Juvenile Asylum; by the New York Infant Asylum; by the Nursery and Child's Hospital, and by the orphan asylums and industrial schools in the city of Brooklyn. To say that the appropriation of a portion of the school fund to the education of the inmates of these institutions changed their character from charitable institutions to institutions that are purely educational, seems quite absurd.

Any discussion of the question whether the statutes applying a portion of the common school fund to other than the common schools of the state are unconstitutional or otherwise, is wholly out of place at this time. If it be assumed that they are unconstitutional, provided those institutions are charitable in their character or design, it would only prove that the legislature had again overstepped the limits of the Constitution and passed certain statutes which were unauthorized. If such were the case, similar instances are not so rare as to render the enactment of such a statute sufficient evidence that these institutions were not of a charitable character or design, to overcome the facts which so clearly show such to have been their purpose. Besides, when we examine section 661 of the same act, we find that it expressly provides that no payments shall be made by the city of New York to any charitable institution wholly or partly under private control for the care, support, secular education or maintenance of any child surrendered to it, except upon a certificate that such child has been received and is retained by such institution pursuant to the rules and regulations established by the state board of charities.

It is true, as claimed, that the Constitution permits the legislature to make provision for the education of the blind, but to say that it, without qualification, permits the legislature to provide for separate education of the blind in an institution wholly or partly under private control, is incorrect. All the provisions of the Constitution relating to this subject should be read together. When so read, it becomes obvious that the power of the legislature to authorize counties to pay for the care, support or maintenance of the blind is limited by the constitutional provision which forbids such payments for any inmate of a charitable institution wholly or partly under private control, who is not received and retained pursuant to the rules established by the state board of charities. The question here is not whether the legislature may make provision for the education of the blind and appropriate money of the state for that purpose, but is, whether a county or city can pay its money to a charitable institution wholly or partly under private control for the care, support and maintenance of its inmates who are not received and retained therein pursuant to rules established by the state board of charities. Such payments are expressly forbidden by section 14 of article 8 of the Constitution as amended in 1894. The unqualified declaration of the Constitution is, that payments by counties or cities to charitable institutions wholly or partly under private control for care, support and maintenance may be authorized, but not required by the legislature; but that no such payments shall be made for any inmate of such institution who is not received and retained pursuant to the rules established by the state board of charities. This declaration of the organic law is plain and unambiguous, and expressly forbids the appropriation of money by the counties and cities of the state to any such purpose, unless the inmates are received and retained in the manner stated. Its manifest purpose is to make all appropriations of public moneys by the local political divisions or municipalities of the state to institutions under private control subject to the supervision and rules of the state board of charities.

These considerations lead to the conclusion that the relator was, to an extent, a charitable institution, was, so far as it was charitable, subject to the visitation of the board of charities and the rules adopted by it, and that no payment could have been properly made to the relator for the maintenance or support of any indigent inmate not received and retained by it pursuant to the rules of that board.

Therefore, it follows that the orders of the Appellate Division and Special Term should be reversed, and the relator's motion for a peremptory writ of mandamus be denied, with costs to the appellant in all courts.