The Clergyman's Hand-book of Law Part 9

*328.* _Charity, Inst.i.tutions._-To determine what is a charitable trust, devise, or gift, it is necessary to particularly bear in mind the most comprehensive definition of charity. Legacies for schools, churches, libraries, cemeteries, the poor, hospitals, and numerous other eleemosynary inst.i.tutions, have been sustained under charitable bequests when they otherwise would have failed.(586)

CHAPTER XXIV. TAXATION

*329.* _Purposes, Exempt._-Only church property that is actually used for church or charitable purposes, is exempt from taxation. Property held for its increase or profit is not exempt.(587) Land bought for a church on which no work on the church is yet begun, is not exempt from taxation.(588)

*330.* _Lot Isolated, Not Exempt._-A lot isolated from the other property of the church of a congregation, is not exempt because the congregation intends to build a church thereon in the future, and actually did build a church thereon two years later.(589)

*331.* _Bishop's Residence, Hospital._-Real property the t.i.tle to which is in the archbishop in fee in accordance with the discipline of the Catholic Church, is not owned by a religious a.s.sociation so as to exempt it from taxation. The records do not show a trust for the diocese nor any other beneficiary. A court will not take judicial notice of the laws of the Catholic Church.(590) But property used as a hospital to care for the sick and wounded of all races and religions indiscriminately, with or without pay according to the ability of the patient, is a benevolent inst.i.tution engaged in a work of charity, and comes under the law of tax exemption.(591)

*332.* _Parsonage, Rented._-A parsonage owned by a congregation and used only as a residence for the clergyman is not exempt because of some part of it being also used for alleged religious services, to-wit: morning prayers of the children before school, a sewing society, and a meeting place for Sunday-school teachers.(592) However, a house and lot rented and kept by the minister was exempt from taxation.(593)

*333.* _Masonic Order, Charity, Elks._-A charity which is confined exclusively to the members of the Masonic Order and their families or to the widows and children of deceased members or those who are directly or indirectly connected with the society, is not purely a public charity within the provisions of the const.i.tution relating to the exemption of inst.i.tutions of purely public charity from taxation.(594) And property held by the Elks for entertainment and to promote social intercourse was held not exempt.(595)

*334.* _Supporting Church, Mississippi._-In the early ages of the States several of them had laws for taxing all the property in parishes laid out by the State for the support of Protestant churches. Gradually these laws were eliminated and at the present time there is probably no State excepting Mississippi that uses money for the support of a church. Maine changed her laws in 1821, and other States followed from time to time.(596) While those taxes were collected, no land within the parish was exempt in some States and in others the property of a non-resident was exempt.(597) In New Hamps.h.i.+re and Pennsylvania, a person could not be compelled to pay the taxes to a denomination of which he was not a member.(598)

*335.* _Appropriations, Contracts, Rent._-Under the const.i.tution of the United States, Congress can not make appropriations nor give aid to any denomination. Also, similar provisions are in many of the const.i.tutions of the States. However, many cases arise out of contracts, which border upon these various rules, and in some States the const.i.tutional provision of the State is such that the State Legislature may legislate concerning religions and give certain aid and support thereto. Paying rent to a congregation for a school-room is not an appropriation or aid to a church contrary to the const.i.tution.(599)

CHAPTER XXV. ELEEMOSYNARY INSt.i.tUTIONS

*336.* _Poor, Inst.i.tutions, Negligence._-As hospitals, homes for the poor, and other eleemosynary inst.i.tutions are supported by money given to charity, it would be a diversion of the trust funds if such inst.i.tutions could be compelled to pay damages for negligence causing personal injury or death. The general rule is that the person causing the injury may be liable, but not the inst.i.tution.(600) However, a charitable inst.i.tution has been held liable for negligence of its manager to notify a nurse of the contagious nature of a case a.s.signed to her.(601)

*337.* _Surgeon, Gratuitous Services._-A charitable medical inst.i.tution is not liable for the negligence of its surgeon in operating upon a patient gratuitously where such inst.i.tution exercises due care in employing a surgeon deemed competent. The fact that besides such gratuitous services, medicine is taught therein for tuition fees and patients who are able to pay are charged a small fee for room, board, nursing, etc., but no fee from the patient to the doctor, does not change it from a charitable inst.i.tution.(602) However, a hospital that is an adjunct to a medical school is liable.(603)

*338.* _Charitable Inst.i.tution._-An inst.i.tution that limits its benefactions to the members of a particular denomination is, in the absence of a statute to the contrary, a charitable inst.i.tution.(604) This rule has exceptions.(605)

*339.* _Charter, Real Estate._-The trustees of a religious, literary, or other benevolent society, can not, irrespective of the powers granted by its charter, purchase and hold real estate under trusts of their own creation which will protect their property from creditors.(606)

*340.* _Mortmain, t.i.tle, Trust._-The statute of mortmain was never in force in Pennsylvania, so a religious corporation can hold the legal t.i.tle to land in trust for the heir-at-law of a testator who has devised it to the corporation in trust for uses that were void under the English law.(607) The only States that have statutes of mortmain are Mississippi and North Carolina. Yet in those States the statutes are somewhat different from the law of England.

*341.* _Public Inst.i.tutions, Support._-Benevolent and charitable inst.i.tutions under a church are not public inst.i.tutions, and moneys can not be appropriated for their support.(608)

*342.* _Nuns, Vows, Property._-When joining a society of nuns, one of the vows taken was that all property should be held in common and whatever property was received after taking the vows should belong to the society.

A person who left the order was not concluded from making claim for her property.(609)

CHAPTER XXVI. SCHOOLS

*343.* _Parent, Education, State, Parochial Schools._-The right of the parent to use judgment as to the proper necessaries of his child, including board, lodging, and education, is generally conceded. However, there must be no abuse of these parental rights, as the child also has rights that even a parent can not infringe. Therefore, the State may require a reasonable opportunity for the education of every child; and if the parent can not give it on account of his poverty, it is in the power of the State to take his child in charge and furnish him an education. The right of the State to make laws requiring a parent to send his child to school between certain ages, as from four to twenty-one years, is well settled. The question of the parent's being obliged to send his child to the public schools or being forbidden to send his child to a private or parochial school, is not settled in some States; but it is being settled in favor of the parent. The Kentucky const.i.tution contains this provision: "... nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed."(610) The right of the State to supervise or inspect private and parochial schools under the police power of the State can not be questioned.(611)

*344.* _Orphan Asylums, School Moneys._-In 1850 the New York Legislature enacted a law as follows: "The schools of the several incorporated orphan asylums within the State other than those in the city of New York, shall partic.i.p.ate in the distribution of the school moneys in the same manner and to the same extent in proportion to the number of children educated therein, as the common schools in their respective cities and districts."

The court ruled that moneys devoted by the const.i.tution to the State for the support of common schools could not be distributed under the act, for the reason that such asylums are not public schools; but moneys from other sources might be paid for the education of such orphan children in proportion to their number to those educated in the common schools of their respective cities and districts.(612) The schools kept by the Roman Catholic Orphan Asylum Society of the city of Brooklyn, are not common schools within the meaning of the const.i.tution, and a provision of law that such schools should share in the distribution of school moneys raised by the State was void.(613)

*345.* _Contract, Direct Payment, Lease._-No school of any denomination or sect is ent.i.tled to public moneys for its support, either by contract for the education of students therein or by direct payment from the government.(614) A school conducted by the Catholic Church in which religious instruction is given to Catholic children is a sectarian inst.i.tution within the const.i.tutional provision against using public funds for sectarian purposes; but public school money expended for such a school conducted by this school district could not be recovered by suit against the school officers.(615) Also, a school maintained as a charity under direction of trustees elected by the town where they must be of a certain religion, is not ent.i.tled to public moneys.(616) But the lease of a part of a parochial school building or the bas.e.m.e.nt of a church for public school purposed does not violate the law.(617) In the States of Maine, Iowa, Ma.s.sachusetts, Illinois, Ohio, Kansas, and Texas, the reading of the King James Bible and the singing of hymns and saying prayers have been held not sectarian.(618) But in Wisconsin, the court ruled the other way.(619)

*346.* _Teacher, Lord's Prayer, Exercise._-"A public school teacher, who, for the purpose of quieting the pupils and preparing them for their regular studies, repeats the Lord's Prayer and the Twenty-second Psalm as a morning exercise, without comment or remark, in which none of the pupils are required to partic.i.p.ate, is not conducting a form of religious wors.h.i.+p or giving sectarian or religious instruction."(620) Substantially the same rule applies in Pennsylvania.(621) However, similar religious exercises conducted by Catholic teachers have generally been held sectarian and not permissible in public schools.(622)

*347.* _Ohio, Directors, Bible._-The const.i.tution of the State of Ohio does not enjoin nor require religious instruction or the reading of religious books in the public schools. The board of directors of a district has charge of the instruction and books to be used therein, and their official discretion will not be interfered with. Therefore, they were authorized to have the Bible read at the opening of the school.(623)

*348.* _Public School, Bible, Prayer._-The committee having control of a public school may make a rule requiring the school to be opened by reading from the Bible and prayer every morning, and that each child shall bow the head during such prayers; that any scholar shall be excused from bowing the head whose parents request it; and when any scholar refuses to obey such rule and his parents refuse to request that he shall be excused, the committee may exclude such scholar from the school.(624)

*349.* _Text-Books, State._-The State has the power to grant authority to the State Board of Education to select and prescribe text-books to be used in the public schools of the State.(625)

*350.* _Bible, Conscience, Const.i.tution._-The parent of a child expelled from the public school can not maintain an action against the school committee by whose orders it was done. In the same case it was held that a rule requiring every scholar to read a particular version of the Bible, though it may be against the conscience of some to do so, does not violate the letter or spirit of the const.i.tution.(626)

*351.* _Schoolhouse, Sunday-School Purposes._-The inhabitants of a school district have no right to use the schoolhouse for religious meeting on Sunday against the objection of any taxpayer in the district, notwithstanding that the officers of the district granted such right. A taxpayer may obtain an injunction against such use, although the injury to him be very slight, as he has no other remedy.(627) A district school board can not authorize the use of the schoolhouse for any other than school purposes.(628)

*352.* _Child, Immoral Character._-The school committee in order to maintain purity and discipline, may exclude therefrom a child whom they deem to be of licentious or immoral character, although such character is not manifested in acts of licentiousness or immorality within the school.(629)

*353.* _Parents, Studies, Teacher._-The requirement of a teacher that a scholar in grammar shall write English composition is a reasonable one, and refusal to comply therewith in the absence of a request from his parents that he be excused therefrom, will justify the expulsion of a scholar from school.(630) But when a parent selects certain studies that the law provides to be taught for his child to study, the teacher has no right to insist that the child shall take some other study and inflict punishment to enforce obedience.(631)

*354.* _Chastis.e.m.e.nt, Cruel._-The chastis.e.m.e.nt of a scholar by the schoolmaster must not be excessive or cruel, but it should be reasonably proportioned to the offense and within the bounds of moderation.(632)

*355.* _Schoolmaster, Authority._-Although a schoolmaster has in general no right to punish a pupil for misconduct after the dismissal of the school for the day and the return of the pupil to his home, yet he may on the pupil's return to school punish him for any misbehavior, though committed out of school, which has a direct and immediate tendency to injure the school and to subvert the master's authority. The fact that the master acted in good faith will not excuse him from damages for the punishment of a scholar where the punishment is clearly excessive and unnecessary. However, where there is a reasonable doubt the master should have the benefit of it.(633)

*356.* _Force, a.s.sistance._-And where a scholar in school hours places himself in the desk of the instructor and refuses to leave it on the request of the master, the master may immediately use such force and call to his a.s.sistance such aid from another person as may be necessary to remove the scholar. The same rule would apply to any one who is not a scholar and intrudes upon the school.(634)

*357.* _White, Unmarried._-Before the adoption of the fourteenth amendment it was necessary in most States that in addition to the child being under twenty-one years of age, he must be of white blood and unmarried.(635) In Ohio, negroes, Indians, and children of less than half white blood, were not ent.i.tled to the benefit of the school fund; and even where this would entirely exclude from school children not sufficient to form a district, still it was held that such children could not attend the white school.(636)

*358.* _Facilities, the Const.i.tution._-So long as abundant facilities are given for the education of all the children of a district, it is not a violation of the const.i.tution of the United States to keep negro and white people separated. The same rule applies to courts.(637)

*359.* _Residents, Public Schools._-Children in a German Protestant orphan asylum are not "children, wards, or apprentices of actual residents" in the district of the asylum, and therefore are not ent.i.tled to enter the public schools of the district.(638)

*360.* _Board, Majority._-Two of the three members of a school board have no authority to act by themselves, and their individual agreement to dismiss a teacher is void. A school board can only act at a duly called meeting of the board, and then the majority vote duly taken decides.(639)

CHAPTER XXVII. PARENT AND CHILD

*361.* _Custody, Maternal Relatives, Father._-A parent is ent.i.tled to the care and custody of his child if he is competent to transact his own business and not otherwise unsuitable. And the mere fact that the maternal relatives who have had the care of the child from its birth have become attached to it and desire to continue to care for it and are able to secure it better advantages than its parent, does not render the parent unsuitable to have its care and custody within the meaning of the statute.

Also, the want of a sympathetic nature or cold reserve in a parent or the fact that he is away on business a great deal of the time, is not sufficient to render him unsuitable. But the right of the father may be lost or forfeited by his ill-conduct, gross ill-treatment, cruelty, or abandonment, or when his conduct and life are such as are injurious to the morals and interest of his child. When the father dies or forfeits his right for reasons already given, the mother, if alive, succeeds to all those rights, subject, however, to the same conditions as the father. And in the case of a child of tender years, the good of the child has to be regarded as the predominant consideration.(640)

*362.* _Mother, Illegitimate, Father._-The mother has a right to the care and custody of her illegitimate child to the same extent that a parent has to his legitimate child.(641) The putative father on the mother's death succeeds to the mother's rights as against the maternal relatives and may secure the custody of the child by _habeas corpus_. This rule is different from the one that prevailed in the Roman law.(642) However, when the father has given bond for the care, support, and education of an illegitimate child, his right to the custody of the child may be superior.(643)