KREKEL, District Judge.
The grounds of demurrer, and arguments in support thereof,, may be considered under the following heads: public policy; unconstitutional grant of the taxing power; special legislation.
As to public policy: It has long been a recognized fact that the order and well-being of any community largely depended on its moral and intellectual cuitare; and nearly all nations making any pretensions to civilization have in some way or other recognized this. The encouragement usually was in keeping with the prevailing form of government and social organization. As these became modified, so as to distribute burdens and benefits more equally, educational interest came in for a share of its favors. Not, however, until intelligence had demonstrated its physical power beyond cavil and dispute, did education obtain the universal recognition it deserves. Organizing armies and schools, improving implements of war, and the school-master, became equally of national concern. At the birth of our government, education had not obtained national recognition; for, beyond “the promotion of science and arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,” no attempt is made in the constitution of the United States to draw education within national cognizance — thus indirectly delegating it to the states. In them it found more or less favor, until to-day there is not a state in the Union which fails to recognize its importance. The constitution of the state of Missouri, under which the normal school act was passed, in ‘its ninth article provides: “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the general assembly shall establish and maintain free schools for the gratuitous instruction of all persons in the state between the ages of five and twenty-one years.” While the policy of the state regarding education is thus represented, it is argued that the constitution confines legislation to the establishment and maintenance of free schools and a state university — the latter provided for in section 4 of the article cited. It is true that, under this last section and the language thereof, “the general assembly shall also establish and maintain a state university, with departments for instruction in teaching, in agriculture, and in natural science.” Normal schools might have been established; and had provisions similar in import been found in the constitution of the United States, and called for construction, a serious question might have arisen on account of its limited character and the necessity of an affirmative grant. In state constitutions, coming as they do from the people, in whom all political power resides, we look, on the contrary, for provisions denying to the legislature powers not to be exercised; for, without such a denial, the exercise of legislative functions is said to be unlimited, and' the discretion of the legislature untrammelled. For courts to declare an act unconstitutional, because, in their opinion, the object had in view might have been accomplished in a different way, would be to substitute the dictum of a judge for the discretion of the legislature.
Another argument is that, while free schools and the state university are mentioned in the constitution, nothing is said óf normal schools, and that' the ignoring of them is equal to a constitutional prohibition. It has already been pointed out that such a construction is not favored, when applied to staje constitutions. Supposing the constitution, after declaring that the diffusion of knowledge and intelligence is essential to the preservation of the rights and liberties of the people, had stopped — would not the establishment of any kind of a school calculated to diffuse knowledge and intelligence have been within the power of the legislature? In order to secure such schools as were undoubtedly deemed the most essential, the constitution commands them to be established and maintained.
The constitution having vested all legislative power not prohibited by the.constitution of the United States in the general assembly, the establishing of normal or other schools than those named, it is fair to presume, was intended to be left with the legislature. . That normal schools are public institutions, useful and necessary for the full development of free schools, is not disputed.
The conclusions, from the views entertained and indicated, are, that the normal school act is in keeping with public policy, and the policy of the state of Missouri, and the passing of it a legitimate exercise of power under the injunctions of the constitution, and an act of discretion on the part of the legislature, which this court claims no right to control or criticise.
Coming to the considere tion of the second ground of demurrer and arguments — the unconstitutional grant of the taxing power— it may well be introduced by a quotation from the case of Citizens’ Sav. & Loan Ass’n [123]*123v. Topeka, 20 Wall. [87 U. S.] 655. Mr. Justice Miller, speaking for the court, says: “It is quite true that a decided preponderance of authority is to be found in favor of the proposition that the legislature of the states, unless restricted by some special provision of their constitutions, may confer upon municipal bodies the right to take stock and lend their credit to corporations, and levy taxes on . the inhabitants and on property within their limits, subject to general ' taxation, to pay the debts thus incurred. In all cases, however, the discussions turned upon the question whether the taxation was for public purposes, and this has been the turning point of the judgment of the courts. In no case have debts created by counties or towns been held valid, except on the ground that the purpose for which the taxes were levied was a public use — a purpose or object which it was the right and the duty of state governments to assist by money raised from the people by taxation.”
• It has already been shown that normal schools are public institutions, and, as such, the legislature had a right to establish and maintain them. If this be so under the views of the supreme court of the United States, as expressed by Mr. Justice Miller, the legislature had the right to grant the power of taxation in aid of their establishment. It is said, however, that the normal school act violates the principle of equal taxation in this, that Johnson county is made to contribute a larger share in support of the normal • school than other property of the state. This argument, if valid, would be available against all classes of aid given to public objects; for the benefits of scarcely any of them operate equally, even on the small scale of a county. Take the case of a railroad, for instance: its benefits are greatest when reasonably near, and specially in the proximity of a station. «Johnson county was invited, under the normal school act, to enter into competition; and, no doubt, the voters favoring the subscription did so — not so much on account of the general, as the local benefit to be derived from the school. In addition to the special benefit secured, they enjoy equally with the people of the state the general benefits of the school. Section 16 of the declaration of rights, even if not limited to the question of eminent domain, providing that “no private property ought to be taken or applied to public use without just compensation,” has been fully met. The property of the people of Johnson county was voluntarily contributed, after fully considering the question of compensation, at an election at which more than two-thirds voted for the appropriation.
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KREKEL, District Judge.
The grounds of demurrer, and arguments in support thereof,, may be considered under the following heads: public policy; unconstitutional grant of the taxing power; special legislation.
As to public policy: It has long been a recognized fact that the order and well-being of any community largely depended on its moral and intellectual cuitare; and nearly all nations making any pretensions to civilization have in some way or other recognized this. The encouragement usually was in keeping with the prevailing form of government and social organization. As these became modified, so as to distribute burdens and benefits more equally, educational interest came in for a share of its favors. Not, however, until intelligence had demonstrated its physical power beyond cavil and dispute, did education obtain the universal recognition it deserves. Organizing armies and schools, improving implements of war, and the school-master, became equally of national concern. At the birth of our government, education had not obtained national recognition; for, beyond “the promotion of science and arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,” no attempt is made in the constitution of the United States to draw education within national cognizance — thus indirectly delegating it to the states. In them it found more or less favor, until to-day there is not a state in the Union which fails to recognize its importance. The constitution of the state of Missouri, under which the normal school act was passed, in ‘its ninth article provides: “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the general assembly shall establish and maintain free schools for the gratuitous instruction of all persons in the state between the ages of five and twenty-one years.” While the policy of the state regarding education is thus represented, it is argued that the constitution confines legislation to the establishment and maintenance of free schools and a state university — the latter provided for in section 4 of the article cited. It is true that, under this last section and the language thereof, “the general assembly shall also establish and maintain a state university, with departments for instruction in teaching, in agriculture, and in natural science.” Normal schools might have been established; and had provisions similar in import been found in the constitution of the United States, and called for construction, a serious question might have arisen on account of its limited character and the necessity of an affirmative grant. In state constitutions, coming as they do from the people, in whom all political power resides, we look, on the contrary, for provisions denying to the legislature powers not to be exercised; for, without such a denial, the exercise of legislative functions is said to be unlimited, and' the discretion of the legislature untrammelled. For courts to declare an act unconstitutional, because, in their opinion, the object had in view might have been accomplished in a different way, would be to substitute the dictum of a judge for the discretion of the legislature.
Another argument is that, while free schools and the state university are mentioned in the constitution, nothing is said óf normal schools, and that' the ignoring of them is equal to a constitutional prohibition. It has already been pointed out that such a construction is not favored, when applied to staje constitutions. Supposing the constitution, after declaring that the diffusion of knowledge and intelligence is essential to the preservation of the rights and liberties of the people, had stopped — would not the establishment of any kind of a school calculated to diffuse knowledge and intelligence have been within the power of the legislature? In order to secure such schools as were undoubtedly deemed the most essential, the constitution commands them to be established and maintained.
The constitution having vested all legislative power not prohibited by the.constitution of the United States in the general assembly, the establishing of normal or other schools than those named, it is fair to presume, was intended to be left with the legislature. . That normal schools are public institutions, useful and necessary for the full development of free schools, is not disputed.
The conclusions, from the views entertained and indicated, are, that the normal school act is in keeping with public policy, and the policy of the state of Missouri, and the passing of it a legitimate exercise of power under the injunctions of the constitution, and an act of discretion on the part of the legislature, which this court claims no right to control or criticise.
Coming to the considere tion of the second ground of demurrer and arguments — the unconstitutional grant of the taxing power— it may well be introduced by a quotation from the case of Citizens’ Sav. & Loan Ass’n [123]*123v. Topeka, 20 Wall. [87 U. S.] 655. Mr. Justice Miller, speaking for the court, says: “It is quite true that a decided preponderance of authority is to be found in favor of the proposition that the legislature of the states, unless restricted by some special provision of their constitutions, may confer upon municipal bodies the right to take stock and lend their credit to corporations, and levy taxes on . the inhabitants and on property within their limits, subject to general ' taxation, to pay the debts thus incurred. In all cases, however, the discussions turned upon the question whether the taxation was for public purposes, and this has been the turning point of the judgment of the courts. In no case have debts created by counties or towns been held valid, except on the ground that the purpose for which the taxes were levied was a public use — a purpose or object which it was the right and the duty of state governments to assist by money raised from the people by taxation.”
• It has already been shown that normal schools are public institutions, and, as such, the legislature had a right to establish and maintain them. If this be so under the views of the supreme court of the United States, as expressed by Mr. Justice Miller, the legislature had the right to grant the power of taxation in aid of their establishment. It is said, however, that the normal school act violates the principle of equal taxation in this, that Johnson county is made to contribute a larger share in support of the normal • school than other property of the state. This argument, if valid, would be available against all classes of aid given to public objects; for the benefits of scarcely any of them operate equally, even on the small scale of a county. Take the case of a railroad, for instance: its benefits are greatest when reasonably near, and specially in the proximity of a station. «Johnson county was invited, under the normal school act, to enter into competition; and, no doubt, the voters favoring the subscription did so — not so much on account of the general, as the local benefit to be derived from the school. In addition to the special benefit secured, they enjoy equally with the people of the state the general benefits of the school. Section 16 of the declaration of rights, even if not limited to the question of eminent domain, providing that “no private property ought to be taken or applied to public use without just compensation,” has been fully met. The property of the people of Johnson county was voluntarily contributed, after fully considering the question of compensation, at an election at which more than two-thirds voted for the appropriation.
The remaining question to be considered is, does the normal school act fall within the constitutional prohibition regarding special legislation?
The twenty-seventh section of article 4, after enumerating a large class of cases, and prohibiting the legislature from passing special laws regarding them, concludes by providing: “The general assembly shall pass no special law for any case for which provision can be made by general law; but shall pass general laws, providing, so far as it may deem necessary, for the cases enumerated in this section, and for all other cases where a general law can be made applicable.”
The large discretion left to the legislature in these provisions is obvious. The inhibition in the first part of the quotation is the passing of special laws in any case for which provision by general law can be made. The command in the last part of the clause cited, is that general laws shall be passed in all other eases where they can be made applicable. The legislature is entrusted with the determination for what cases provisions by general laws can be made; so, also, to what cases general laws can be made’ applicable. Under such provisions, a court would hesitate long before declaring an act passed unconstitutional.
Looking at the object to be effected, it would appear that the normal school act partakes more of the nature of a general law than a special act. It is the application of a law to a particular person or persons, or special facts and circumstances, which gives it character, either as a general or special act- This becomes obvious from an examination of the cases specified in the clause regarding which no special laws are to be passed.
It is further argued that, because the body of regents who are to control the schools is neither a corporation, company, or association, nor a department of the state university, nor a free school, as enumerated in the constitution, normal schools have no legal existence, and the legislature no power to authorize or permit a county to subscribe thereto, and the bonds issued are therefore void.
The question as to limiting by implication the legislative power under a state constitution has been considered. The legislature, being free to act, possesses the power of choosing the instrumentalities deemed best, and of creating such as may be found necessary.
The normal school is the legitimate offspring of the school law, aims at the very object it seeks to accomplish, and is but a link in the educational system of the state.
The labored briefs in the case have been a great aid in the examination. The arguments and authorities cited have been carefully considered. The conclusion arrived at is, that the demurrer is not well taken, and, therefore, it is overruled. The conclusions reached make it unnecessary to determine the question of former adjudication raised by the pleadings. Judgment accordingly.