The question is a somewhat broad one, but for the purposes of this inquiry I assume that the Honorable House of Representatives in substance desires my opinion on the question whether or not public moneys raised by taxation may, under the constitutional provisions, be expended by the Commonwealth or by any county, city or town thereof for the purpose of founding, maintaining or otherwise aiding any church, religious denomination or religious society or any institution, school, society or undertaking which is under sectarian or ecclesiastical control. On this assumption I submit the following conclusions:

The right to appropriate public funds for specific purposes is no more extensive than the power to levy taxes for such specific purposes. The power of taxation has been defined and limited by the Constitution of the Commonwealth. So article IV of section 1 of chapter 1, part second, declares that the purposes for which the power of taxation in its various forms may be exercised by the Legislature are "for the public service, in the necessary defence and support of the government of the said Commonwealth, and the protection and preservation of the subjects thereof." Article XI of section 1 of chapter 2 restricts the issuing of moneys from the treasury to purposes of "the necessary defence and support of the Commonwealth, and the protection and preservation of the inhabitants thereof, agreeably to the acts and resolves of the General Court."

In Lowell v. Boston, 111 Mass. 454, 460, it is said that:

The power to levy taxes is founded on the right, duty and responsibility to maintain and administer all the governmental functions of the State, and to provide for the public welfare. To justify any exercise of the power requires that the expenditure which it is intended to meet shall be for some public service, or some object which concerns the public welfare.

And in Mead v. Acton 139 Mass. 341, 344, the court said:

The right to tax is the right to raise money by assessing the citizens for the support of the government and the use of the State. The term taxation" imports the raising of money for public use, and excludes the raising of it for private uses.

Opinion of the Justices, 186 Mass. 604.

The question is in each case, therefore, whether or not the purpose for which money is to be appropriated and spent is a public purpose, or, in connection with the precise question under consideration, whether or not the establishment, maintenance or aid of a church, religious denomination or religious society or of any institution, school, society or undertaking which is under sectarian or ecclesiastical control may be a public purpose which would justify the appropriation and use of public money.

With respect to churches and religious societies or denominations in general, the question is disposed of by a consideration of the existing provisions of the constitution and of the history of their enactment. The

original provision of the constitution embodied in the bill of rights (art. 3d) expressly empowered the legislature to compel the several towns, parishes and other political divisions of the Commonwealth to provide for public worship, and failure so to do was punished in some cases even by indictment. See Commonwealth v. Waterbury, 5 Mass. 257. As a necessary consequence of this duty the towns and parishes of the Commonwealth were authorized to raise money by taxation for the purpose of maintaining and supporting "public Protestant teachers of piety, religion and morality" in all cases where such provision was not voluntarily made. St. 1799, c. 87. And fines and penalties were provided for the failure so to do. It remained for the constitutional amendment duly adopted in 1833 to put an end to taxation for the support of churches or religious societies. The final words of this amending article (Art. XI) of the articles of amendment are as follows:

and no subordination of any one sect or denomination to another shall ever be established by law.

It is true that the Commonwealth still aids churches or religious societies of every sect and denomination by a general exemption from taxation of their property (see R. L., c. 12, § 5, cl. 7); but I am constrained to conclude that in respect of particular religious societies or churches an appropriation of public moneys raised by taxation for their benefit would be unconstitutional and void, for the reason that such appropriation would not be for a public body but for an association of individuals (see Kingman v. Brockton, 153 Mass. 255), and might be objectionable for the reason that it effected a subordination of one sect or denomination to another, contrary to the final provision of Article XI of the amendments to the Constitution of the Commonwealth hereinbefore referred to.

In the case of schools, so far as such schools fall within the limits of the system of education required to be established and maintained by the cities and towns of the Commonwealth, the rule seems to be equally well established and definite. Article XVIII of the amendments to the Constitution is as follows: [Here follows the text of the Amendment.] The terms "public schools" and "common schools," as used in this amendment, have been repeatedly defined. So in Jenkins v. Andover, 103 Mass. 94, 99, the court said:

schools which

These are the schools to which the eighteenth article applies, towns are required to maintain, or authorized to maintain, though not required to do so, as a part of our system of common education, and which are open and free to all the children and youth of the towns in which they are situated, who are of proper age or qualifications to attend them, or which adjoining towns may unite to support as a part of the same system. This class of schools does

not include private schools which are supported and managed by individuals; nor colleges or academies organized and maintained under special charters for promoting the higher branches of learning, and not specially intended for, nor limited to, the inhabitants of a particular locality.

In the case of all such schools an appropriation of public money to or for the benefit of any religious sect for the maintenance exclusively of its own school is expressly forbidden. See Jenkins v. Andover, above cited.

Upon the other hand, it has long been the custom of the Commonwealth to aid by grants of land, by immunity from taxation, and even by direct appropriation of money, the establishment and maintenance of colleges, technical schools and other institutions of higher learning. The distinction between an appropriation for public schools and for the institutions of higher learning has been pointed out in Merrick v. Amherst, 12 Allen, 500, 508, as follows: [Here follows the passage cited ante, 14.]

The assistance granted the higher institutions of learning, therefore, is based upon the proposition that the constitutional provision did not apply to them and that the establishment and maintenance of such institutions is a public purpose for which the Constitution does not forbid the appropriation of money raised by taxation. Upon the other hand, a school, society or institution which is under direct sectarian or ecclesiastical control and was designed solely, or even principally, for the benefit of persons of that particular sect or denomination, and for no others, could not be deemed to be maintained for a public purpose which would warrant an appropriation of the public funds.

Replying to the specific question of the Honorable House of Representatives, the principles above described are in my opinion equally applicable to any institution, society or undertaking for which it is asked that public money be appropriated. I apprehend that the question in each case must be whether or not the purpose which it is sought to aid is a public purpose, and such question is to be determined upon the facts then presented.1

The meaning of Amendment XVIII again came before the Supreme Judicial Court in 1913, when the Legislature requested the opinion of the Justices on several questions of law, the second of which was as follows:

Do the existing provisions of the Constitution of Massachusetts, and especially Article XVIII of the amendments thereto, adequately prohibit the appropriation by the Commonwealth or by any county or municipality of money raised by taxation for maintaining or aiding any church, religious denomination or religious society, or any institution, school, society or undertaking which is wholly or in part under sectarian or ecclesiastical control?

So far as the second question relates to the appropriation of money for schools the answer is simple. Article XVIII of the Amendments to the Constitution was adopted because of a deep-seated conviction of

1 House Journal for 1908, 771; House Documents, 1908, No. 1467.

the imperative necessity of preserving the public school system in its integrity and of guarding it from attack or change by explicit mandate. Public schools never have been understood to include higher institutions of learning like colleges and universities. All moneys raised by taxation for the purpose of expenditure within the sphere of the public or common schools, as these words generally have been understood, must be disbursed exclusively for the support of such schools and cannot be diverted to any other kind of school maintained in whole or in part by any religious sect. But there is no constitutional prohibition against appropriations for higher educational institutions, societies or undertakings under sectarian or ecclesiastical control. Merrick v. Amherst, 12 Allen, 500; Jenkins v. Andover, 103 Mass. 94.

So far as the second question relates to the appropriation of public money for aiding any church, religious denomination or religious society, it presents more difficulty. The Chief Justice and Justices Morton, Braley and DeCourcy are of opinion that such an appropriation is prohibited by the Constitution and its Amendments, while Justices Hammond, Loring and Sheldon incline to the opposite conclusion. It has been said repeatedly that answers given by the justices to questions propounded by the Legislature have not the binding force of decisions of the court, but are the opinions of the individual justices acting as constitutional advisers to a co-ordinate department of the government. The doctrine of stare decisis does not apply to them, but they are open to reconsideration and revision. Commonwealth v. Green, 12 Allen, 155, 164; Opinion of the Justices, 5 Met. 596, 597; Opinion of the Justices, 126 Mass. 557, 566. Whether under these circumstances the existing provisions of the Constitution "adequately prohibit" the appropriation of money raised by taxation for these purposes so that there is no "necessity for the adoption of an amendment" to this end, presents a legislative question rather than a question of law.1

3. Proposals of Further Amendment.

There has been considerable feeling in the State that the existing provisions of the Constitution are not sufficiently definite and comprehensive. In 1900 petitions in aid of the following proposed amendment were received by the Legislature:

ARTICLE OF AMENDMENT.

No law shall be passed respecting an establishment of religion or prohibiting the free exercise thereof, nor shall the State or any county, city, town, village or other civil division use its property or credit or any money raised by taxation or otherwise, or authorize either to be used, for the purpose of founding, maintaining or aiding by appropriation, payment for services, expenses, or in any other manner, any church,

1 Opinion of the Justices (1913), 214 Mass. 599, 601.

religious denomination or religious society, or any institution, school, society or undertaking which is wholly or in part under sectarian or ecclesiastical control.

This amendment, which is popularly known as the AntiSectarian Amendment, has been before the Legislature every year from 1900 to 1916 inclusive except the years 1905 and 1906. In every year except 1914 and 1915, the proposed amendment was either referred to the next General Court or the petitioners were given leave to withdraw. The first roll call on the amendment occurred in 1912, when reconsideration of the adoption of the committee's recommendation of leave to withdraw was refused by a vote of 16 to 170.1

On January 21, 1914, the same form of amendment was introduced on petition. On April 22 it came up in the House for a third reading. Mr. Lomasney of Boston moved that the resolve be amended by striking out all after the words "religious society," and inserting in place thereof the words or any college, educational or other institution, school, infirmary, hospital or undertaking which is not a State, county, city or

1 The vote was as follows:

Yeas: W. W. Baker, A. W. Bartlett, Sanford Bates, C. L. Carr, J. H. L. Coon, Joseph Craig, B. D. Gifford, F. P. Greenwood, J. A. Hart, C. T. Holt, W. R. Meins, A. H. Silvester, J. S. Smith, H. M. Storm, G. P. Webster, H. G. Wells. Total, 16.

Nays: Henry Achin, Jr., E. C. R. Bagley, J. H. Baker, John Ballantyne, J. F. Barry, F. D. Bartlett, W. A. L. Bazeley, J. V. Beal, H. C. Beaman, J. W. Bean, W. A. Bellamy, A. H. Bicknell, E. H. Bigelow, A. E. Bliss, C. M. Blodgett, William Booth, J. G. Brackett, J. H. Brennan, J. J. Brennan, J. P. Brennan, M. J. Brophy, D. J. Buckley, J. D. Burns, O. W. Butler, M. J. Carbary, J. J. Carmody, P. B. Carr, J. F. Cavanagh, A. B. Clark, W. P. Clark, J. H. Cogswell, S. I. Collins, J. D. Connors, L. M. Conwell, M. H. Cotter, C. H. Cox, J. J. Creed, Courtenay Crocker, C. A. Crowley, T. S. Cuff, J. A. Curtin, G. T. Daly, Thomas Davies, J. L. Donovan, G. P. Drury, W. S. Duncan, J. F. Dwyer, J. F. Eagan, H. M. Eames, G. W. W. Edson, C. W. Eldridge, G. H. Ellis, W. B. Fay, J. B. Fellows, Edward Fisher, Daniel Fitzpatrick, J. T. Flanagan, F. W. Ford, J. E. Fowle, Gerrett Geils, Jr., C. L. Gifford, W. H. Gifford, G. W. Gordon, Isaac Gordon, F. J. Grady, W. J. Graham, J. F. Griffin, B. F. Haines, E. M. Hall, C. W. Harding, L. F. Hardy, E. F. Harrington, E. R. Hathaway, T. R. Hawley, Martin Hays, M. A. Henebery, W. P. Hickey, F. M. Hill, C. W. Hobbs, Jr., H. W. Holbrook, Alexander Holmes, C. H. Howe, F. W. Hurlburt, J. M. Hurley, J. E. Kearns, M. S. Keenan, Michael Kelly, W. W. Kennard, L. R. Kiernan, W. S. Kinney, James Kittle, H. B. Knowles, F. X. LeBoeuf, Joseph Leonard, W. J. Leslie, G. W. Libbey, E. F. Lilley, M. M. Lomasney, P. I. Lombard, W. J. Look, J. E. Lyman, J. P. Maguire, J. C. Mahoney, J. W. Martin, Jr., A. J. McCulloch, E. J. McDermott, E. E. McGrath, J. H. McInerney, S. B. McLeod, W. M. McMorrow, T. J. Meade, J. F. Meaney, John Mitchell, C. H. Morgan, Frank Mulveny, W. J. Murray, W. J. Naphen, A. N. Newhall, C. A. Norwood, C. R. O'Connell, F. D. O'Donnell, W. A. O'Hearn, J. H. O'Keefe, C. A. Orstrom, C. B. Packard, J. H. Parker, Jr., J. A. Parks, H. H. Parsons, N. B. Parsons. J. H. Pendergast, W. E. Piper, F. H. Pope, A. F. Priest, J. E. Quinn, G. F. Reardon, J. J. Reed, M. J. Reidy, L. O. Rieutord, J. L. Saltonstall, J. C. Sanborn, E. E. Sargent, Alexander Sedgwick, Benjamin Sharp, J. H. Sherburne, C. D. Smith, J. G. Stevens, W. L. Stone, B. F. Sullivan, W. H. Sullivan, W. J. Sullivan, E. A. Sweeney, D. W. Teehan, Alfred Tewksbury, H. E. Thompson, N. A. Tufts. E. W. Tyler, C. L. Underhill, J. R. Wallace, H. W. Warner, R. M. Washburn, T. W. White, I. E. Willetts, H. J. Winslow, E. A. Witt, Roger Wolcott, J. I. Wood, N. P. Wood, H. D. Wright, O. L. Wright. Total, 170.