5. TAXATION-EXEMPTIONS-LITERARY AND SCIENTIFIC INSTITUTIONS-GREEK-LETTER FRATERNITY.

The defendant, a Greek-letter fraternity, is a corporation organized under the general laws of the State for the purpose of "erecting and maintaining a chapter house on the campus of the University of Maine, and to hold and dispose of all such real estate and personal property by purchase, lease, sale or otherwise as may be necessary for all such purposes and any and all other acts and things incident thereto and necessary, proper, and convenient to the transaction of any such business of said corporation." In accordance with its chartered rights, the defendant corporation in 1904, under a parol license granted to it by the trustees of the university, erected upon land of the university, in Orono, a frame building, called a chapter house, with properly equipped dining room, kitchen, study, and sleeping rooms, reception rooms, and the like, the funds therefor being provided by issuing its corporate notes to the amount of $10,000, guaranteed by the trustees of the university. On April 1, 1907, this building was used and occupied by about 30 students of the university, who were members of an unincorporated branch or chapter of the defendant corporation known as Alpha Chapter of Sigma Epsilon Fraternity, and who had entire charge and management of the building, the furnishing of food, and the hiring of servants. The house was used, as such chapter houses usually are, as a home where the students lived while attending the university. No officer or professor of the university lived in the building, or had any control or management of it other than the general supervision and control exercised over the general student body. The expenses of maintenance, including board, fuel, service, repairs, and a certain installment of indebtedness, was apportioned among the active members of the chapter, no income or profit being divided among the stockholders, and no rental for the use of the land was exacted by the university. On April 1, 1907, the plaintiff town taxed the chapter house as real estate, under the provisions of Revised Statutes, chapter 9, section 3, and which said tax the defendant refused to pay on the ground that the property was exempt from taxation.

Held: (1) That the corporate purposes of the defendant are neither literary nor scientific, but rather they are domestic, in the nature of a private boarding house, and such is the business it carries on.

(2) That the defendant is entitled neither to exemption from taxation as an e lucational or scientific institution, nor immunity as an agency or instrumentality of the State, but that its property was subject to taxation in the plaintiff town.

(3) That the tax assessed against the defendant was not a tax against the University of Maine, but against a separate and independent corporation.

Report from supreme judicial court, Penobscot County.

Action by the town of Orono against the Sigma Alpha Epsilon Society. Case leported to the law court. Judgment for plaintiff.

Action of debt to recover a tax for the year 1907, assessed by the plaintiff town against the Sigma Alpha Epsilon Society, a corporation located in the plaintiff town. When the action came on for trial, an agreed statement of facts was filed, and the case was reported to the law court upon the same with the stipulations that, "if upon such facts the court is of opinion that the action is maintainable, judgment is to be entered for the plaintiffs for the sum of $84, with interest, as claimed in the writ, otherwise the plaintiffs are to be nonsuited."

Argued before Emery, C. J., and Whitehouse, Spear, Cornish, King, and Bird, JJ. CORNISH, J.: This is an action of debt for a municipal tax for the year 1907, and comes to this court on an agreed statement of facts. The defendant admits that the assessment of the tax and all of the proceedings connected therewith are regular in form, but denies liability on the ground that the property is exempt from taxation. It appears from the agreed statement that the defendant, a Greek-letter fraternity, is a corporation organized November 13, 1903, under the general laws of this State for the purpose of "erecting and maintaining a chapter house on the campus of the University of Maine, and to hold and dispose of all such real estate and personal property by purchase, lease, sale, or otherwise as may be necessary for all such purposes and any and all other acts and things incident thereto and necessary, proper, and convenient to the transaction of any such business of said corporation.

In accordance with its chartered rights the defendant corporation in 1904, under a parol license granted to it by the trustees of the university, erected upon land of said university in Orono a frame building, called a chapter house, with properly equipped dining room, kitchen, study, and sleeping rooms, reception rooms, and the like, the funds therefor being provided by issuing its corporate notes to the amount of $10,000, guaranteed by the trustees of the university under authority of chapter 393, page 581, Private and Special Laws 1903, to which reference will be made hereafter. On April 1, 1907, when the tax in suit was assessed, this building was used and occupied by about 30 students of the university, who were members of an unincorporated branch or chapter of the defendant corporation known as Alpha Chapter of Sigma Epsilon Fraternity, and who had entire charge and management of the building, the furnishing of food, and the hiring of servants. The house was used, as such chapter houses usually are, as a home where the students lived while attending the university. No officer or professor of the university lived in the building, or had any control or management of it other than the general supervision and control exercised over the general student body. The expenses of maintenance, including board, fuel, service, repairs, and a certain installment of indebtedness, was apportioned among the active members of the chapter, no income or profit being divided among the stockholders. The university exacted no rental for the use of the land.

Under these circumstances was the defendant corporation subject to taxation for this chapter house, which was taxed as real estate, under Revised Statutes, chapter 9, section 3?

1. The general rule is that all real property within the State is subject to taxation. (Rev. St., chap. 9, sec. 2.) Among the exemptions is " the real estate of all literary and scientific institutions occupied by them for their own purposes or by any officer thereof as a residence." (Rev. St., chap. 9, sec. 6, par. 2.) Clearly the case at bar does not fall within this exception to the general rule. This is not a tax against the University of Maine, which is conceded to be a literary and scientific institution. The university does not own the property which is the subject of taxation here. This property is owned by an independent corporation, and the owner is the party taxed and sued. The corporate purposes of the defendant are neither literary nor scientific. They are rather domestic, in the nature of a private boarding house, and such is the business that it carries on.

In Phi Beta Epsilon Corporation v. Boston, 182 Mass. 457, 65 N. E. 824, the plaintiff, a corporation, with chartered purposes "to encourage and pursue literary and scientific work and to provide for its members a place for holding literary and scientific meetings, as well as a place for study," while students, owned and maintained a fraternity house not on land of the institute for students of the Massachusetts Institute of Technology. The claim of exemption as being a literary or scientific institution was there set up, but the court found that the dominant use of the property was that of a boarding house for the students, and therefore held that the exemption did not apply. The opinion makes the distinction in these words: "The housing or boarding of students is not of itself an educational process any more than is the housing or boarding of any other class of human beings. The nature of the process, so far as respects its educational features, is not determined solely by the character of those who partake of its benefits. Suppose a number of students of the Institute of Technology should conclude to provide lodging and board for themselves on some cooperative plan, and for that purpose should buy and occupy a house not in any way connected with the grounds or property of the institution, could it be said that such a house was used for an educational purpose? Suppose again, that these students were incorporated for the purpose of providing board and lodging for themselves and others while students, could it be said that the use of the real estate for such purposes was an educational process?" And see People ex rel. Delta Kappa Epsilon Society v. Lawler, 74 App. Div. 553, 77 N. Y. Supp. 840, affirmed in 179 N. Y. 535, 71 N. E. 1136.

It is true that in these cases cited the land itself was owned by the fraternity, while in the case at bar the land was owned by the university. This fact, however, makes no legal difference in the result. Not all the real estate of literary and scientific institutions is exempt from taxation. It is only such as is "occupied by them for their own purposes or by any officer thereof as a residence." The lot on which this building was erected was occupied neither by the university nor by any officer thereof, but by an independent corporation for its own purposes, and therefore it lost the privilege of exemption which might under other conditions attach to it. Suppose, for illustration, the university had leased a lot to a citizen of Orono, who erected a boarding house or a store for students thereon, could it be contended that the boarding house or store could escape taxation merely because it rested on land that might have been used by the university for its own purposes, but in fact was not? The exemption, which as an exception must always be construed strictly, does not go so far. (St. James Ed. Inst. v. Salem, 153 Mass. 185, 26 N. E. 636, 10 L. R. A. 573; Foxcroft v. Straw, 86 Me. 76, 29 Atl. 950; Foxcroft v. Camp Meeting Assoc., 86 Me. 78, 29 Atl. 951.) 2. But the defendant goes further, and claims not merely an exemption, but an immunity from taxation on the ground that the University of Maine is a branch of the state government, an instrumentality of the State itself, and therefore its property is public property, no more subject to taxation by the town of Orono than a jail, a courthouse, or an insane hospital, and still further that the relations between the university and the defendant are such that the immunity reaches to it. The doctrine of such immunity is everywhere acknowledged when the facts present an apposite case. "No exemption is needed for any public property held as such," says the court in Directors of Poor v. School Directors, 42 Pa. 25. The same principle is recognized in People v. Salomon, 51 Ill. 52; People v. Doe, 36 Cal. 222; Worcester County v. Worcester, 116 Mass. 193; Camden v. Camden, Vill. Corp., 77 Me. 530, 1 Atl. 689; Goss Co. v. Greenleaf, 98 Me. 436, 57 Atl. 581.

The necessary facts, however, are lacking here. The University of Maine, while chartered by the State and fostered by it, especially in recent years, is not a branch of the State's educational system, nor an agency nor an instrumentality of the State, but a corporation, a legal entity wholly separate and apart from the State. The defendant seeks to class it as a state institution in the same sense as are the public schools or the normal schools, but such is not its legal status.

A comparison with the normal schools of the State is a fair one to illustrate the difference. The State maintains at the present time four normal schools, one each at Farmington, Castine, Gorham, and Presque Isle. This system originated in 1863, when a public act was passed providing for the appointment of commissioners to establish two normal schools. (Pub. Laws 1863, p. 155, chap. 210.) This act also prescribed the qualifications for admission, the principles upon which the schools should be conducted, the course of study, and made the state superintendent their superintendent under the approval of the governor and council. Four half townships of wild land were appropriated for their benefit, the proceeds from the sale to be deposited in the state treasury to the credit of the normal-school fund. In this way the State itself took on a new form of public service, and the educational system thus adopted became in fact an instrumentality of the State. No corporation was created, no separate entity was brought into existence, but the State simply put its own beneficent hand in a new direction, and the title to the property was taken in the name of the State. (Priv. and Sp. Laws 1867, p. 306, chap. 372; Resolves 1871, p. 206, chap. 281.) In the Revision of 1871 the normal-school system takes its place alongside the common school and free high school system. (Rev. St. 1871, chap. 11, secs. 83-87.) In 1873 these schools were placed under the direction of a board of trustees, the governor and superintendent of schools to be members ex officio, and the others to be appointed by the governor and council. In 1878 the Gorham Normal School was established (Pub. Laws 1878, p. 37, chap. 44), and in 1903 the normal school at Presque Isle (Priv. and Sp. Laws 1903, p. 363, chap. 223). The entire system is now regulated under Revised Statutes 1903, chapter 15, sections 109-115, and is an apt illustration of what is known as an instrumentality or agency of the State.

Contrast now the history and the legal statutes of the University of Maine. By an act approved July 2, 1862, chapter 130 (12 Stat., 503), Congress donated a certain quantity of public lands to such States as might provide colleges for the benefit of agricultural and the mechanic arts, the money to be received from the sales thereof to be invested as a perpetual fund, and the income thereof to be appropriated by each State acting as trustee to the endowment, support, and maintenance of at least one such college. Acting under this offer from the General Government, the State of Maine, by chapter 532, page 529, Private and Special Laws 1865, created certain persons therein named a body politic and corporate by the name of the "Trustees of the State College of Agricultural and Mechanic Arts," with power to establish and maintain such a college as was authorized by the act of July 2, 1862, to purchase and hold real estate, and through its trustees to have the general management of the institution. A separate and distinct corporation was established, and the separation between the college and the State thus created by the charter has always been observed and maintained. By chapter 59, page 41, the town of Orono, and by chapter 66, page 44, Private and Special Laws 1866, the city of Old Town, were authorized to grant aid to the college. No appropriation was made by the State to the institution for ten years after its incorporation, but by chapter 100, page 38, Resolves 1875, the sum of $10,500 was donated on condition that the trustees should "not under any circumstances contract any further debts in behalf of said college." Annual appropriations have been made since that time, with the exception of 1879, and in varying amounts, the appropriations for 1880 and 1881 being $3,000 and $3,500, respectively, and for 1907 and 1908 $110,000 each. Such gifts, however, can not change the character or legal status of the institution any more than smaller gifts to academies and private hospitals could make them a part of the sovereign State. In 1897 the name of the corporation was changed from the "Trustees of the State College of Agriculture and Mechanic Arts" to the "University of Maine," but it was expressly provided that "the said University of Maine shall have all the rights, powers, privileges, property, duties, and responsibilities which belong or have belonged to the said trustees." (Chap. 551, p. 947, Priv. and Sp. Laws 1897.)

This change of name did not change the status of the institution, or work its adoption as a part of the State, or make its property the property of the State. It remained the same distinct corporation as before.

Nowhere in the Revised Statutes is the University of Maine mentioned except in connection with the compensation of its trustees (Rev. St., chap. 116, sec. 12), and with the duties imposed upon the Experiment Station, which was established by chapter 119, page 88, Public Laws 1887. It is nowhere recognized as a part of the educational system of the State. Even when power was conferred upon the trustees by chapter 393, page 581, Private and Special Laws 1903, to guarantee loans for the construction of fraternity houses, it was expressly provided that "nothing herein contained shall be construed as binding the State of Maine to pay said loans, or any of them, or any part thereof, or any interest thereon; and provided further that no appropriation therefor shall be hereafter asked of the State of Maine." No language could

more plainly recognize the distinction between the corporation and the State. The legal status of this institution has been and is the same as that of the other colleges in Maine, chartered by Massachusetts or by Maine, Bowdoin College, Colby College, and Bates College. They are each doing excellent work along the lines of higher education, but not one of them is a component part of the State's educational system. The difference between the relation of the normal schools and of the University of Maine to the State is paralleled in the difference between the various so-called public or general hospitals of the State and the two hospitals for the insane. The former are doing a necessary and charitable work and are recipients of the bounty of the State, but the latter alone represent the State itself in its sovereign capacity along charitable lines. The former are apart from the State; the latter a part of the State. Actions at law would lie against the former as against any other corporations, but not against the latter, as no suit lies against the sovereign power.

The defendant calls attention to the case of Auditor General v. Regents of the University of Michigan, 83 Mich., 467, 47 N. W., 440, 10 L. R. A., 376, where the court held that property owned by the defendants was owned by the State, and therefore exempt from taxation under a statute exempting all public property belonging to the State. The court, however, in that case based their decision upon the fact that by the constitution of Michigan, the regents of the university are made an agency of the State. "By these provisions," say the court, "the body corporate, which was at first the creation of the legislative will, has received the sanction of the constitution and has become a part of the fundamental law, and in some respects is not subject to legislative control or interference. It is not, however, independent of, but is a part of, the State, a department to which the education of literature, science, and the arts is confided.” This strikingly different situation readily distinguishes that case from the one at bar. That decision is in entire harmony with this opinion.

3. The second step by which the defendant corporation seeks to appropriate any such immunity from taxation as might belong to the university is equally difficult of accomplishment under the facts as they exist, but it is unnecessary to consider the reasons at length, because the first step is itself impossible.

The defendant corporation is entitled neither to exemption as an educational or scientific institution, nor immunity as an agency or instrumentality of the State. Its property was subject to taxation by the plaintiff town, and in accordance with the stipulation of the parties the entry must be:

Judgment for the plaintiff for $84, with interest, as claimed in the writ.

VII. North Carolina.

[J. R. Collie, Appellant, v. Commissioners of Franklin County (supreme court of North Carolina, August term, 1907), 145 N. C., 170.j

Civil action, brought to August term, 1907, of Franklin superior court by the plaintiff and in behalf of other taxpayers of Franklin County, against the board of commissioners of said county, to restrain said board from collection of a tax levied at the meeting of June, 1907, of 1 cent on the $100 worth of property and 3 cents on each taxable poll, for the support and maintenance of the public schools of the county, in addition to and beyond the limit of 663 cents on the $100 worth of property and $2 on each taxable poll levied for general state and county purposes in said county in said year. Plaintiff obtained from Hon. C. M. Cooke, judge resident of the fourth judicial district, a temporary restraining order, returnable before himself. Upon the hearing his honor dissolved the restraining order, and plaintiff appealed.

William H. Ruffin for plaintiff, appellant. F. S. Spruill, Charles B. Aycock, and R. B. White for defendant, appellee.

BROWN, J: It is admitted that the questions presented by this appeal have been passed upon adversely to the contention of the defendant in two cases. (Barksdale v. Commissioners, 93 N. C., 473, and Board of Education v. Commissioners of Bladen, 111 N. C., 578.) We are now asked to review those cases and disregard them as precedents in the decision of this case. As those cases involve a construction of certain sections of the constitution relating to a question of taxation, and involve no right affecting the life, liberty, or property of the citizen, we can see no reason why they should continue to guide us, if time and reflection have convinced us that they are not correct interpretations of the letter and spirit of our organic law. We are not lacking in respect for the opinion of the eminent judges who decided those cases because we happen to differ from them in our efforts to gather from that instrument the true intent and purpose of its framers. The doctrine of stare decisis is worthy of all respect, and should be accorded due weight in the consideration of all cases, but the doctrine, where it does not involve the rights of the citizen, should not be carried to that extreme where it becomes an obstruction to the carrying out of other provisions

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of the constitution intended to promote the progress, prosperity, and welfare of the people. Again, it must be remembered that the cases cited are somewhat weakened as authoritative precedents by dissenting opinions in each of acknowledged power and force of reason. Section 1, Article V, of the constitution directs the levying of a capitation tax by the general assembly "which shall be equal on each to the tax on property valued at three hundred dollars in cash.' * "And the state and county capitation tax combined shall never exceed two dollars on the head." Section 6 of the same article enacts that "The taxes levied by the commissioners of the several counties for county purposes shall be levied in like manner with state taxes, and shall never exceed the double of the State tax, except for a special purpose and with the special approval of the general assembly." Article IX of the constitution, after declaring that "religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education should be forever encouraged," commands, in section 3 thereof, that one or more public schools shall be maintained at least four months in every year in each school district in each county of the State; and further provides that, "if the commissioners of any county shall fail to comply with the aforesaid requirements of this section, they shall be liable to indictment." At every session the general assembly has endeavored to give effect to this section of the constitution by providing that, if the tax levied by the State for the support of the public schools is insufficient to enable the commissioners of each county to comply with that section, they shall levy annually a special tax to supply the deficiency, to the end that the public schools may be kept open for four months, as enjoined by the constitution. Revisal, sec. 4112. It is admitted that, in the Barksdale case, this court held that the sections quoted from Article V are a limitation upon the taxing power of the legislature and control Article IX, so that if the taxes levied in accordance with that limitation and equation are insufficient to support the public schools for four months, the commissioners can not be compelled to levy more, and that the act of the general assembly requiring it is void. The Barksdale case was approved and followed in the Bladen case, and the matter so exhaustively discussed in the opinions of the court and of the dissenting judges in both cases that it is difficult to add anything new to the controversy, and it is unnecessary to repeat the arguments set forth in their opinions. We agree with the court in those cases that Article V is a limitation generally upon the taxing power of the general assembly. Nor are we called upon to hold that the tax to supplement the school fund in each county directed by the statute to be levied in case of need may be upheld as a "necessary county expense, or as a "special tax" for a special purpose. It is unnecessary, in the construction we give to the constitution, to place our decision upon any such grounds. We hold with Mr. Justice Merrimon in the Barksdale case that, while this limitation upon the taxing power of the general assembly prevails generally, it does not always prevail, and that it should not be allowed to prevent the giving effect to another article of the same instrument equally peremptory and important. We must not interpret the constitution literally, but rather construe it as a whole, for it was adopted as a whole, and we should, if possible, give effect to each part of it. The whole is to be examined with a view to ascertaining the true intention of each part and to giving effect to the whole instrument and to the intention of the people who adopted it. (Coke Lit., 381a; Cooley Const. Lim. (7th Ed.), p. 91.)

Of the two constructions which have been given it in the cases cited, we prefer to adopt that which, while properly limiting the power of taxation as to matters not embraced in the constitution, leaves it within the power of the legislature to give effect to one of its most important and peremptory commands. While the general assembly must regard such limitation upon its power to tax, as defined in many decisions of this court, when providing for the carrying out of objects of its own creation and the ordinary and current expenses of the state government, yet, when it comes to providing for those expenses especially directed by the constitution itself, we do not think the limitation was intended to apply. Although the legislature must observe the ratio of taxation between property and the poll provided in Article V, section 1, it is not required to obey the limitation upon the poll and the property tax if thereby they are prevented from giving effect to the provisions of Article IX. It is better, we think, to hold that such limitation applies to legislative creations rather than let it hinder constitutional commands. The purpose of our people to establish by taxation a general and uniform system of public schools, wherein tuition shall be free of charge to all the children of the State, and that such schools should be open every year for at least four months, is so plainly manifest in Article IX of the constitution that we can not think it possible they ever intended to thwart their clearly expressed purpose by so limiting taxation as to make it impossible to give effect to their directions. The reasons which induced the people to adopt Article IX are set forth in its first section, and they are so exalted and forcible in their nature that