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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 (article III.) 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 in some cases subject even to indictment. See Commonwealth v. Waterborough, 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 1834 to put an end to taxation for the support of churches or religious societies. The final words of this amending article (article 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:

All moneys raised by taxation in the towns and cities for the support of public schools, and all moneys which may be appropriated by the state for the support of common schools, shall be applied to, and expended in, no other schools than those which are conducted according to law, under the order and superintendence of the authorities of the town or city in which the money is to be expended; and such money shall never be appropriated to any religious sect for the maintenance, exclusively, of its own school.

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:

These are the schools to which the eighteenth article applies, schools which 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:

The phrases "public schools" and "common schools" have acquired under the legislation and practice of this State a well-settled signification. They are never applied to the higher seminaries of learning, such as incorporated academies and colleges. These, in a certain broad and comprehensive sense, are public institutions, because they are controlled by corporations and are usually open to all persons who are willing to comply with the terms of admission and tuition. But the broad line of distinction between these and the "public or common schools" is, that the latter are supported by general taxation, that they are open to all free of expense, and that they are under the immediate control and superintendence of agents appointed by the voters of each town and city. That the amendment was intended to apply only to these schools is manifest, not only from the terms in which it is expressed, but also from the history of its origin and adoption as part of the organic law.

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

To the
Civil Service
April 13.

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.



The clerk of the chief of police of the city of Worcester, who is appointed by such chief of police, subject to confirmation by the city council, and whose duties are such clerical duties as may be prescribed by such chief of police, is not an "officer" within the meaning of R. L., c. 19, § 9, which excepts from the operation of the civil service law and rules "and officers . . . whose appointment is subject to confirmation by the . . . city council of any city," and the appointment of such clerk must be made in accordance with the requirements of such law and rules.

You request my opinion upon certain questions in regard to the position of clerk of the chief of police of the city of Worcester. You advise me that on Feb. 3, 1908, the city council of that city passed an ordinance which provides as follows:

SECTION 1. In the month of February, nineteen hundred and eight, and in the month of January of each alternate year thereafter, the chief of police shall appoint a clerk, subject to confirmation by the city council as hereinafter provided.

SECTION 2. The appointment of clerk of the chief of police, made as provided in section one of this ordinance, shall take effect when confirmed by the city council of the city of Worcester, and approved by the mayor.

SECTION 3. The clerk of the chief of police shall be under the sole direction of, and his duties shall be such as are prescribed by, the chief of police.

No statement is made by you as to the duties prescribed for such clerk by the chief of police, but I assume that they are ordinary clerical duties.

You make several inquiries, but in my view of the law a reply to one of them will, I think, be sufficient to enable you to perform your duty in the premises. This question is as follows:

Is the appointment of a clerk of the chief of police, made under the above ordinance and without due requisition and certification under the civil service law and rules, a legal appointment?

My answer is that such appointment is not a legal appointment. The position of clerk of the chief of police is within the civil service rules, unless it is expressly excepted therefrom. The only exception which with any show of reason could be held to apply to a person holding that position is the exception of "officers . . . whose appointment is subject to confirmation by the . . . city council of any city." R. L., c. 19, § 9. In my opinion, however, a clerk of a chief of police is not an "officer" within the meaning of the word as here used.

That there is a distinction between public "office" and public "employment" is well settled. Brown v. Russell, 166 Mass. 14, 25; Attorney-General v. Drohan, 169 Mass. 534, 535. See, also, Opinion of the Justices, 166 Mass. 589. This distinction is recognized in the statutes of this Commonwealth relating to civil service. R. L., c. 19, §§ 9, 23, 25, 26, 28 and 32. Cf. St. 1884, c. 320, §§ 2, 14. See, also, Brown v. Russell, supra; Opinion of the Justices, supra. The principal test as to whether or not a position is an office, as distinguished from an employment, is whether or not it involves "a delegation of a portion of the sovereign power to, and possession of it by, a person filling the office." 1 Op. Atty.-Gen. 72. The position in question does not satisfy this requirement. The method of appointment and the period of service, whether fixed or otherwise, may properly be considered in determining whether or not a position is an "office" or an "employment," but are not decisive. "The decisive question is whether the real character and functions of the place in question make it an office or an employment in the

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