(Cite as: 45 S.W. 245)

STATE ex rel. GARTH

v.

SWITZLER, Judge.

STATE ex rel. WILFLEY

v.

RASSIEUR, Judge.

Supreme Court of Missouri.

March 15, 1898.

In banc. Certiorari by the state, on the relation of W. W. Garth, executor of the estate of John C. Conley, against Lewis M. Switzler, judge of the probate court of Boone county, and certiorari on the relation of L. R. Wilfley, executor of the estate of Susan E. Spear, against Leo Rassieur, judge of the probate court of the city of St. Louis. Considered together, and proceedings quashed in both.

GANTT, C. J.

This is an original proceeding in this court for a writ of certiorari to the judge of the probate court of Boone county, commanding him to send up the record of his proceedings in the matter of the assessment and levy of a collateral succession tax upon the estate of John C. Conley, late of said county, deceased. The writ was issued, and made returnable to division No. 2 of this court; but owing to the importance of the questions involved, and the fact that a similar writ had also been issued upon the application of L. R. Wilfley, executor of Susan E. Spear, against Judge Rassieur, judge of the probate court of the city of St. Louis, returnable to the court in banc, this cause was transferred to the court in banc: and, the records of the probate court in each case having been removed into this court, the two cases were heard together, upon a motion to quash the proceedings for want of jurisdiction in said courts to assess and levy said collateral succession tax. John C. Conley died in Boone county, Mo., on the 6th day of December, 1896, leaving an estate, consisting of realty in this and other states, and of bonds, notes, certificates of stock, and other securities. His will, dated February 18, 1896, was duly established and admitted to probate by the probate court of Boone county, on the 7th of December, 1896. The said testator was never married. He made a bequest of $20,000 for charitable purposes, and gave the remainder of his estate, in different amounts, to his collateral relatives. He gave some special legacies of a certain amount, and, after the payment of various special bequests, the residue of the estate is given by his will to certain nephews and nieces named in the residuary clause. Letters testamentary were duly issued to the relators, who qualified as executors of the will on the 15th of December, 1896, and filed their inventory on the 11th of January, 1897. The probate court, on the 30th of August, 1897, entered an order of record reciting the death of said John C. Conley, the probating of his will, and setting out the terms thereof, the date of letters testamentary, and of the filing of the inventory, and, over the protest of the relators (who waived formal notice of the proceedings, but objected to the right of the court to make such assessment), proceeded to fix the value of said estate, for the purposes of the collateral succession tax, under the act of April 1, 1895, and the amendatory acts of 1897. The court found that the sum of $20,000 was given by the will, to trustees, for charitable purposes; $18,391.31 of the estate will be required to pay the debts of the testator (so far as appeared up to the date of that order) and other legal demands; that the real estate in the state of Missouri was of the value of $45,660; and that the personal property ofthe estate was of the value of $182,919.34,‑‑making a total valuation of $228,579.34. The court deducted from this amount the sum of $20,000, given for charitable purposes, and $18,391.34, required to pay debts and expenses of the administration, and held and determined that the clear market value of all of said property subject to such tax was $190,188, and that said amount was subject to the payment of a collateral succession tax of $5 for each and every $100 of such sum, up to $10,000; and $12.50 for every $100 in value in excess of said sum of $10,000. Eighty‑five shares of stock in the Bank of Hico, Tex., of the par value of $8,925, was included in the above valuation. The court then levied and charged said estate with a total tax of $23,023.50, and ordered the executors to pay the same. All these facts appear upon the face of the record of the probate court. A similar state of facts exists as to the tax on Susan E. Spear's estate in all material respects.

The constitutionality of the act of the general *247 assembly of Missouri entitled "An act providing for the endowment of the state university, and for the establishment and endowment of free scholarships of merit therein in each county," approved April 1, 1895, and of an act of the general assembly entitled "An act to amend an act passed by the 38th general assembly of the state of Missouri, entitled 'An act providing for the endowment of the state university, and for the endowment of free scholarships of merit therein in each county,' by adding a new section after section 1 of said act, to be numbered section 1a, which new section shall read as follows," approved March 16, 1897, is directly assailed in and by these proceedings. The proposition of relators is that both the act of April 1, 1895, and the amendatory act of March 17, 1897, are void, because in conflict with various provisions of the constitution of Missouri and the fourteenth amendment to the constitution of the United States. No question is raised as to the power of this court by certiorari to supervise the proceedings in the probate courts, and, if their action in levying said taxes is found in excess of their powers, to quash their proceedings, and we have no doubt of our power to do so. At the risk of being deemed prolix, we will insert so much of the acts as bear directly upon the questions raised.

The act was passed in 1895, and amended by two acts passed in 1897. As amended, it provides, among other things, as follows:

"Section 1. That all property conveyed by will, or by the death of an intestate, *** to any persons other than the father, mother, husband, wife or direct lineal descendant of the testator, intestate, *** except property conveyed for some educational, charitable or religious purpose exclusively, shall be subject to the payment of a collateral succession tax of five dollars for each and every one hundred dollars of the clear market value of such property.

"Sec. 2. That in addition to the fees now provided by law, no corporation shall be organized under the laws of this state, and no foreign corporation shall do business in this state unless the incorporators shall, upon filing the articles of association, pay to the state treasurer, in trust for the state of Missouri, to be disposed of as hereinafter provided in this act, the sum of twenty‑five hundredths of a dollar for every thousand dollars of the capital stock of such corporation as a franchise fee; and a like franchise fee shall be paid in the same manner on every thousand dollars of the increase of the capital stock of any corporation.

"Sec. 3. That every manufacturer of patent medicines shall annually pay a license tax of twenty‑five dollars.

"Sec. 4. That all moneys, which may hereafter escheat to the state, shall be distributed in the manner provided by this act.

"Sec. 5. That all taxes, fees or moneys received under this act by any county official, shall be paid during the first week of the following month to the county treasurer, who shall credit three‑fourths to a fund hereby created, to be known as 'the state university scholarship fund,' and remit the remaining one‑fourth to the state treasurer; and from all money received directly by the state treasurer under this act, he shall monthly reserve one‑fourth, and remit the remaining three‑fourths to all the county treasurers of the state, to be credited to 'the state university scholarship fund' of such counties.

"Sec. 6. That all moneys received by the state treasurer to be retained by him under this act shall be deposited in the state treasury to the credit of the 'seminary fund' as provided by law.

"Sec. 7. That all moneys received by the county treasurer of each county to be credited to 'the state university scholarship fund' shall be forever kept and preserved as a sacred permanent fund; and shall be invested and loaned in the manner provided in this act."

Sections 8, 9, and 10 of the act are in the following words:

"Sec. 8. The income of the moneys in 'the state university scholarship fund' shall be collected annually, and one‑fourth of the same added to the principal, and the remaining three‑fourths shall be faithfully appropriated for establishing and maintaining free scholarships in the state university, the amounts and terms of which shall be fixed and changed from time to time, as may be necessary, on the written order and resolution of the board of curators of the state university.

"Sec. 9. On the first week of August of each year, beginning with the first Monday after due notice thereof, as prescribed by the county court, in two newspapers in each county, representing different political parties where such newspapers exist, there shall be held at the court house, in the county seat, an examination of all applicants qualified under the law to be students of the university. Such applicants shall be actual residents of the county, and such examinations shall be conducted by three examiners, one of whom shall first be appointed by written notice to the county clerk by the president of the board of curators of the university during the month of July, and one selected thereafter by the county court, of another political faith, and the third selected by the agreement of the two so chosen, with power in the county court, or the presiding judge thereof in vacation, to fill all vacancies in the position of examiner; and such examination shall be written, and shall meet the requirements for entrance in the academic department of the university; provided, that the duties imposed on county courts or the judges thereof, by this section, shall be discharged in the city of St. Louis by the mayor.

"Sec. 10. Those applicants passing the best and most meritorious examinations, to the number of scholarships established in each *248 respective county, shall be awarded such scholarships, and be entitled thereon to enter free of matriculation fees any department, school or college of the university, and have paid to them in equal monthly installments while attending the university, the sum provided by the scholarship so awarded, for defraying the expenses of such attendance: provided, that no applicant shall be qualified to receive such scholarship unless such examiners shall be satisfied that the applicant is dependent upon his own exertions for his education, and financially unable to otherwise obtain the same."

By comparison of the act thus revised and amended in 1897 with the original act of 1895, it will be seen that the progressive feature of the original act, to wit, the increase of 7 1/2 per cent. on amounts of over $10,000, is repealed, and specific provision is added for valuation of inheritances and enforcing the collection of the tax. Amendments are also made to sections 2 and 3 in matters not material in the present proceeding; while in section 5, the basis of the distribution of the funds collected by the state treasurer in trust under the provisions of the act, so that it is made in the different counties on the basis of representation in the general assembly.

Lying at the threshold of this discussion is the objection which goes to the very substance of this enactment. It is insisted that the tax provided in the act is not levied for a public purpose, within the meaning of section 3 of article 10 of the constitution of Missouri, which ordains that "taxes may be levied and collected for public purposes only." This provision of our constitution accords with the definition of a "tax," as expounded by the courts and law writers of this country. Judge Cooley, in his work on Constitutional Limitations, says: "Taxes are burdens or charges imposed by the legislature upon persons or property to raise money for public purposes." Judge Coulter, in Northern Liberties v. St. John's Church, 13 Pa. St. 104, said: "I think the common mind has everywhere taken in the understanding that taxes are a public imposition, levied by authority of the government, for the purpose of carrying on the government in all its machinery and operations; that they are imposed for a public purpose." The supreme court of the United States, in Loan Association v. Topeka, 20 Wall. 655, in a luminous opinion by Judge Miller, after a review of the authorities and a discussion of the power to tax, laid it down as an established principle that "beyond cavil there can be no lawful tax which is not laid for a public purpose." In Re Mayor of New York, 11 Johns. 80, the court said: "The word 'taxes' means burdens, charges of impositions put or set upon persons or property for public uses; and this is the definition which Lord Coke gives to the word 'talliage' (2 Co. Inst. 532); and Lord Holt, in Carth. 438, gives the same definition, in substance, of the word 'tax."' Chief Justice Appleton, in Allen v. Inhabitants of Jay, 60 Me. 124, says: "A tax is a sum of money assessed under the authority of the estate on the person or property of an individual, for the use of the state. 'Taxation,' by the very meaning of the term, implies the raising of money for public use, and excludes the raising if for private objects and purposes." Judge Jere Black, in Sharpless v. Mayor, 21 Pa. St. 167, says: "I concede that a law authorizing taxation for any other than a public purpose is void."

We construe section 3 of article 10 of our constitution as a direct inhibition upon the general assembly to levy a tax for a private purpose, or for the benefit of any private individual. The language used is not susceptible of any other construction. We shall assume without further comment that, if the act under review authorizes the levy of a tax, that tax must be for a public purpose; otherwise, it is a direct violation of the constitution of this state. Does it authorize a tax? The learned counsel for the probate judges argues that it is not strictly a tax. He says: "Although called a 'tax,' it is not properly so, but a bonus or price exacted from the collateral kindred and strangers to the blood, as the condition upon which they take the estate whose owner is dead." But, even if such a distinction can be maintained, the contention does not reach the vital point upon which the relators insist, namely, that, by whatever name this burden or excise, tax, bonus, or exaction from the citizen may be called, still it falls within the purview of the word "taxes," as used in the third section of article 10 of our constitution. The word in that section is used in its generic sense, as expounded by lexicographers, judges, and lawyers long before its use in our organic law. In the sense that taxes can only be levied for a public purpose, that word includes every character and kind of tax, general or special. The power of the state to demand such a bonus is referable, and referable only, to the taxing power; so that, whether this "collateral succession tax," as it is denominated by the legislature, be termed a tax or a bonus, an excise, a price imposed for the privilege of taking an estate by will or inheritance, it must be levied or exacted for a public purpose only under our constitution, and under those limitations on the taxing power which exist in the very nature of our free institutions. Miller, Const. U. S. p. 242. Outside of express constitutional inhibitions, there are limitations upon the powers of every branch of our governments, state and federal. Every branch has its limitations short of absolute power. The supreme court of the United States expressed it in these words: "No court would hesitate to declare void a statute which enacted that A. and B., who were husband and wife to each other, *249 should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D.; or which should enact that the homsetead now owned by A. should no longer be his, but should henceforth be the property of B." And in the same case the court further said: "To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals, to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law, and is called 'taxation.' This is not legislation. It is a decree under legislative forms."

That the state of Missouri, for public purposes, may assess and levy taxes upon the succession or devolution of property under our inheritance laws or statute of wills, subject only to the prohibitions of the constitution of the state and the constitution of the United States, we have no doubt whatever. The constitutionality of such a tax has been too long affirmed by the courts of last resort to admit of doubt; but we have not found nor have counsel pointed to any statute which has received the sanction of the courts which levied such a tax for other than a plainly public purpose. Is the purpose for which the act in question authorizes this collateral succession tax a public one? Perhaps few branches of the law have been more carefully considered than that which this inquiry suggests. The duty and power of imposing taxes is a legislative one, and the presumption is, and must be, that the legislature will only levy a tax for a public purpose; and the courts are only justified in interposing when it clearly appears that the constitution, which is the supreme law governing both the legislature and the courts, has been or will be violated by the enforcement of the legislative purpose. What is and what is not a public purpose is not always easily determined. The supreme court of the United States, in Loan Association v. Topeka, 20 Wall. 655, states the rule to be that "in deciding whether, in a given case, the object for which the taxes are assessed falls upon the one side or the other of this line, the courts must be governed mainly by the course and usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, what objects or purposes have been considered necessary to the support and for the proper use of the government, whether state or municipal. Whatever lawfully pertains to this, and is sanctioned by time and acquiescence of the people, may well be held to belong to the public use, and proper for the maintenance of good government, though this may not be the only criterion of rightful taxation." The supreme court of Michigan, in People v. Salem, 20 Mich. 452, with signal ability and thoroughness, discussed this question, and came to the conclusion that "the term 'public purpose,' as employed to denote objects for which taxes may be levied, has no relation to the urgency of the public need, or to the extent of the public benefit to follow. It is, on the other hand, a term of classification to distinguish the objects for which, according to settled usage, the government is to provide, from those which, by the like usage, are left to private inclination, interest, or liberality." How these general principles have been applied, reference to the judgments of the courts will best determine.

In Loan Association v. Topeka, 20 Wall. 655, a statute of the state of Kansas which authorized a town to issue its bonds in aid of the manufacturing enterprise of private individuals came before the supreme court of the United States; and it was held void, because the taxes necessary to pay the bonds would, if collected, be a transfer of the property of individuals to aid in the projects of gain and profits of others, and not for a public use, in the proper sense of these words.

In Allen v. Jay, 60 Me. 124, a town, at a meeting legally called, voted to loan its credit to a firm to the amount of $10,000, and issue its bonds for that sum, provided the firm would invest $12,000 to $13,000 in a steam sawmill, with a run of stone to grind meal, and maintain it for 10 years; and the legislature afterwards passed an enabling act authorizing said loan, but the supreme judicial court held the act unconstitutional and void, because not for a public use.

All the buildings on a very large portion of the city of Charleston, S.C., having been destroyed by fire, the city council passed an ordinance providing for the issue of bonds by the city to be loaned the owners, to build and rebuild the waste places and burnt districts. The legislature afterwards, by an act reciting the ordinance, fully confirmed and authorized the issue of said bonds, known as "Fire Loan Bonds," and certain persons bought them. Afterwards suit was brought against the city to collect them, but the supreme court of the state held said bonds were issued for a private purpose, and void. That the taxing power could only be exercised for some public purpose. Feldman v. City of Charleston, 23 S. C. 57.

In November, 1872, a great conflagration swept over a large portion of the city of Boston. The legislature of Massachusetts passed an act authorizing the city of Boston to issue bonds, and loan the proceeds on mortgage to the owners of the land, to enable them to rebuild their houses. The supreme court held the act void; that it was not for a public object, in a legal sense. Lowell v. City of Boston, 111 Mass. 454.

In Curtis's Administrator v. Whipple, 24 Wis. 350, the legislature empowered the town of Jefferson to raise a sum by taxation to be paid to the treasurer of the Jefferson Liberal Institute, a private educational institution, but the supreme court held the act *250 void, the tax being for a private purpose; and a like conclusion was reached in Jenkins v. Inhabitants of Andover, 103 Mass. 94.

This court, in Deal v. Mississippi Co., 107 Mo. 464, 18 S. W. 24, held section 5697, Rev. St. 1879, void, because it gave a bounty to private individuals for growing forest trees upon their own lands.

In each and all of these cases it was held that the fact that the public might be incidentally benefited by rebuilding a burnt city, the establishment of manufactories and schools, would not sustain the tax. Every factory, every private school or academy, every industrial enterprise which furnishes opportunity for labor and the earning of wages, benefits a community in one sense; but the indirect good which inures in this way furnishes no basis for taxation of other business to build up such occupations. Learned counsel for the respondents do not seriously controvert this general proposition, but meet it with the assertion that the state university is a state institution, established and maintained for a public purpose. This is at once conceded by the relators, because the people of Missouri, in their sovereign capacity, have recognized and declared in their organic law that "a general diffusion of knowledge and intelligence is essential to the preservation of the rights and liberties of the people, and imposed upon the legislature the duty of establishing and maintaining free public schools for the gratuitous instruction of all persons in this state between the ages of six and twenty years." Const. Mo. 1875, art. 11, § 1. Moreover, by section 5 of article 11 of the constitution, "the general assembly is enjoined, whenever the public school fund will permit and the actual necessity of the same may require, to aid and maintain the state university now established with its present departments." By section 6 of the same article of the constitution, a fund is provided, "the annual income of which, together with so much of the ordinary revenue of the state as may by law be set apart for that purpose," shall be appropriated for the maintenance of the free public schools and the state university. If, then, this collateral succession tax is levied to support the state university, unquestionably it is for a public purpose.

At this point, however, the real contention in this case arises. Relators insist that the fund sought to be accumulated by this tax is not a provision for the support of the university, but is a tax to raise a fund, the proceeds of which must be paid to certain favored individuals, to enable them to buy food and clothing for their own use while pursuing their studies at the university. The controversy must be determined by the act itself. By reference to the summary of its various sections as hereinbefore set out, it will be observed that three‑fourths of all the moneys raised by this tax was intended to create the "State University Scholarship Fund" of the several counties of this state, to be kept as a permanent fund, to be invested so as to bear interest. This interest is to be collected annually, and one‑fourth of it added to the fund, and the remaining three‑fourths to be appropriated for establishing and maintaining free scholarships in the university, the amounts and terms of which are to be fixed by the curators of the university. By section 9 provision is made for competitive written examinations on the first week of August in each year of actual residents of each county, which shall meet the requirements for entrance in the academic department of the university, provided, however, that no applicant shall be eligible to receive such free scholarship, unless the examiners "shall be satisfied that the [said] applicant is dependent upon his own exertions for his education, and financially unable to otherwise obtain the same." Having thus determined who may be the beneficiaries of this tax, and segregated them from the great mass of citizenship, and awarded them these free scholarships, section 10 of the act provides that they shall "be entitled thereon to enter free of matriculation fees any department, school or college of the university, and have paid to them in equal monthly installments while attending the university, the sum provided by the scholarship so awarded, for defraying the expenses of such attendance."

Deferring for the present any discussion of the proposition that one‑fourth of the tax may be sustained because it is directed to be paid into the state treasury for the benefit of the "Seminary Fund,"‑‑an admitted public use,‑‑ we direct our attention to the arguments for and against the "Free Scholarship Fund." It is perfectly evident, we think, that no distinction can be maintained between the fund and its annual increment. It cannot be true that this fund is a state or public fund, under this act, while the whole beneficial use and interest arising therefrom is private. Such a distinction is illogical and unsound. The fund is created for the sole purpose of producing the interest to be derived from it, and it is incredible to believe that the legislature would have provided the tax at all if it was not to obtain the interest to be used for the maintenance of the scholars. The fund and the interest are inseparable.

Counsel for the curators urge that this statute can only be properly construed by keeping in view "the historical setting" of the university, and "its historical genesis." They assert that university education is a proper object‑‑ indeed, one of the primary objects‑‑ for which public taxation may be levied, and that the extent of such taxation in aid of higher education is for the legislature alone to determine; that, the constitution having established free public schools and the university, the legislature can go further, and furnish free support of the children while attending these schools and the university. It is *251 true that the learned counsel for the curators are not altogether in harmony on this proposition. Some of the learned counsel for the curators boldly argue that, if the legislature can furnish free scholars and free teachers, why can it not go further, and furnish a free support to the children who attend these schools, if that is deemed necessary to make the system a success; whereas their colleague draws the line at the free support of the students of the university, and denies the right to furnish free living to the children attending the common schools, "because the law recognizes and enforces the parental obligation of support during the period of elementary education." Some of the learned counsel for the curators admit that such a support of the students is paternalism in its most pronounced form, but say it is "not of a hurtful or dangerous kind; that it is only paternalism of the state, not of the federal government." Paternalism, whether state or federal, as the derivation of the term implies, is an assumption by the government of a quasi fatherly relation to the citizen and his family, involving excessive governmental regulation of the private affairs and business methods and interests of the people, upon the theory that the people are incapable of managing their own affairs, and is pernicious in its tendencies. In a word, it minimizes the citizen, and maximizes the government. Our federal and state governments are founded upon a principle wholly antagonistic to such a doctrine. Our fathers believed the people of these free and independent states were capable of self‑ government,‑‑a system in which the people are the sovereigns, and the government their creature, to carry out their commands. Such a government is founded on the willingness and the right of the people to take care of their own affairs, and an indisposition on their part to look to the government for everything. The citizen is the unit. It is his province to support the government, and not the government to support him. Under self‑government, we have advanced in all the elements of a great people more rapidly than any nation that has ever existed upon the earth, and there is greater need now than ever before in our history of adhering to it. Paternalism is a plant that should receive no nourishment upon the soil of Missouri. While the exigencies of this case may require the operation of such a principle, we are sure its germ is not to be found in the constitution of this state, nor in the spirit of its people. Whatever other fault the constitution of 1875 may have, it is certain that its framers sought most sedulously to curb the power of those clothed with authority to legislate in behalf of favored classes, and to leave the people the largest possible control over their own affairs. Especially has the power of taxation been jealously hedged about and limited. The same authority is found in the constitution to levy taxes to clothe and feed the children who may desire to attend the free public schools, as there is to raise money by taxation to hand over to young men and young women to support them while they acquire what is termed "the higher or university education"; but we find no warrant for either in the organic law of this state or in the character of our government. It is one thing to provide for the establishment and maintenance of a state university and a system of free public schools,‑‑the state, through its own officers, agencies, and municipalities, constructing and owning the buildings and apparatus, and employing the teachers as public functionaries, responsible under her own laws for the discharge of their duties,‑‑and a wholly different thing to support private individuals who attend the university and public schools, by public taxation. But it is said that nothing is more common than the endowment of free scholarships as a part of the endowment of a university. This may be true of the universities of Europe, and individual instances are to be found in this country where some great benefactor of the race has, out of his own bounty, provided such scholarships; but these examples furnish no guide to the free states of this Union, clearly not to the legislature of Missouri under its organic law.

The act under consideration endows the scholar, not the university. It provides in unmistakable terms that a fund shall be raised by taxation, and paid over to students attending the university, for their support while so engaged. It is a pure and simple gift of public money by the state to private individuals, for their own private use, in plain violation of section 46 of article 4 of the constitution, which prohibits the legislature from granting public money to any individual, association of individuals, or other corporation whatsoever. We hold that, when the constitution provided for the establishment and maintenance of the university, it conferred authority to support an institution belonging to the state; and this grant is not to be extended to the unlimited support of the pupils who may attend or desire to attend that school. In obedience to the mandate of the constitution, the legislature has made generous provision for the university and public schools, and the opportunities for education are commensurate with the greatness of the commonwealth and the needs of the people. Neither the constitution nor a sound public policy demands that the state should indirectly stifle all motive for individual effort and laudable ambition. Free common schools adorn every school district in the state. Splendid normal schools are distributed to its different sections, and the doors of the university are practically opened to every thrifty, energetic young man and woman in the state. The state has not been niggardly with its children. Every proper stimulus is set before them. But here she stops, and says to the citizen, "The right to lay further burdens for your private benefit is exhausted. Under equal and just laws, by your own self‑ reliance and energy, you must *252 win the rewards of labor and the honors of the state."

It is only necessary to add that counsel for the curators do not attempt to maintain this tax on the theory that the young men and women who would obtain these scholarships are paupers, in the meaning of the law. Even without this admission, it is perfectly apparent that the act, by its terms, does not confine this pension to the children of poor persons who may, in a legal sense, be denominated "paupers." The class of ambitious young men and women who could avail themselves of the benefits of this act would resent such a designation, and scorn this proffered aid if, to obtain it, they must first be classed as paupers. It is perfectly clear that the tax is not levied upon any such principle. If it were, it would collide with another fundamental principle. It would be class legislation. Says Judge Cooley, in his work on Taxation (page 221): "To justify taxation for the purpose of education, the rules under which the people shall be admitted to the privileges given must not be invidious and partial, but must place all parties upon a plane of practical equality. The rule is substantially the same here that applies in the apportionment of taxation. Equality must be the aim of the law, and it must be assumed that the state has no special favors to bestow upon privileged classes." "It will not be competent to single out some one class of the community, and exclude them from the benefits of the public schools on arbitrary grounds." Our conclusion is that this tax is levied for a purely private purpose, and for that reason it is in contravention of the constitution of Missouri.

[A portion of the opinion dealing with other objections is omitted here]

Other grave objections are made to the act,--one challenging its title as containing two distinct subjects; another, that the various subject‑matters found in the body of the act are not indicated at all in the title. These objections have been presented with the greatest ability, and have been duly considered; but, inasmuch as the propositions already decided go to the very substance of the act, we deem it unnecessary to pass upon the point as to the title of the act. To respond to the very thorough discussion of the point by counsel would extend this opinion unnecessarily to too great length. The act of 1895 must be held void, and it follows that the probate courts of Boone county and of the city of St. Louis were wholly without jurisdiction to levy the taxes upon the estates of John C. Conley and Susan E. Spear, and their proceedings in that behalf must be quashed; and it is so ordered.

SHERWOOD, BURGESS, ROBINSON, and BRACE, JJ., concur. WILLIAMS and MARSHALL, JJ., having been of counsel, take no part in the decision of the case.