Opinion
March 28, 1949.
1. Constitutional law — due process.
When applied to substantive rights, due process of law means that the government is without the right to deprive a person of life, liberty or property by an act which has no reasonable relation to any proper governmental purpose, or which is so far beyond the necessity of the case as to be an arbitrary exercise of governmental power.
2. Constitutional law — appropriation to nonprofit hospitals in the state.
An appropriation by the legislature of public funds to, and in aid of, the nonprofit, nonsectarian hospitals in this state for the care of the indigent sick, without regard to race, color or creed, the funds to be allocated and expended under the supervision and control of an appropriate and competent state agency, the operations of the hospital to be conducted under a state-wide long range hospital plan prescribed by the said agency, coupled with a provision for a lien for the recovery of money so expended, if and when the hospital ceases to be one qualified under the act, bears a reasonable relation to the governmental purpose expressed in Section 86, Constitution 1890, which ordains that "the legislature may provide for the care of the indigent sick in the hospitals in the state." And therefore such an appropriation (1) is not violative of the due process clause, Section 14 of the Constitution; nor (2) is it violative of Section 183, Constitution, prohibiting appropriations to corporations, that section being applicable alone to counties and municipalities, nor (3) is it violative of Section 258, Constitution, which prohibits the pledging or loaning of the credit of the state in aid of any person, association or corporation, there being by the statute an appropriation and not a pledge or loan.
3. Constitutional law — when the purpose of a statute is legitimate, the means is a matter for legislative determination.
If the end to be attained by a legislative enactment is within legitimate authority, the means to the end is to be chosen by the legislature, the only limitation thereon being that the means so chosen shall not be so far beyond the necessity of the case as to be an arbitrary exercise of governmental power; and if the end be public it matters not that it is attained through a private channel.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Hinds County; H.B. GILLESPIE, J.
R.O. Arrington, Assistant Attorney General, for appellant.
In Mississippi Constitutions by Ethridge Sections 183 and 258, Constitution 1890, are discussed at length. On page 342, under Section 183, the purpose of this section as explained by the author, is as follows: "This section prohibits counties, cities, towns, or other municipal corporations from becoming subscribers to the capital stock of any railroad or other corporation for pecuniary profit, or to make any appropriation, or loan of its credit in the aid of such corporation. It revokes all previous authority heretofore conferred upon any county, city or municipality or power for any of the purposes aforesaid, whether by general or special law. The great purpose of this part of the section is to prevent public credit being pledged to private enterprises, such enterprises being apart from governmental purposes of the county or municipality. . . ."
On page 446, under Section 258, of the Constitution, he said: "This section of the constitution should be considered in connection with Section 183 of this constitution already treated and all the reasoning under said section is applicable here also. . . ."
In my search of the authorities, I do not find a case where it is expressly held that Section 183 would prohibit the State from making appropriations or loaning or pledging its credit in aid of any person, association, or corporation. However, a number of cases hereafter to be cited, treat the same sections together insofar as aiding private corporations are concerned.
In St. Louis S.F. Ry. Co. v. Benton County, 132 Miss. 325, 96 So. 689, the court held: "1. Constitutional Law. All provisions in pari materia construed together.
"In construing a provision of the Constitution, all sections in pari materia must be considered together, and the meaning and the purpose determined by the scheme or plan or provision considered as a whole." (132 Miss. Syllabus 1, page 325.)
In the recent case of W. Horace Williams Co. v. Federal Credit Co. et al., 198 Miss. 111, 21 So.2d 582, the court held: "5. Constitutional Law. "In construing constitutional provision, court will look to dominant object to be accomplished by constitutional provision rather than to a literal or technical interpretation." 198 Miss. 112, Syllabus 5.
In the case of Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, the court held in effect that the reasoning applied to Section 183 of the constitution also applied to Section 258 of the constitution, page 110 to 112 inclusive, Mississippi Reports. They were also considered together in the concurring opinion in the same case, page 116 Miss. Reports — also in the dissenting opinion, page 117. If Section 183 prohibits the State from making appropriations to a private corporation then the question in this case is fully answered by the authorities hereinafter cited, and if Section 183 should be held not to apply to the State then Section 258 of the Constitution would apply and if the same reasoning applies to Section 258 as to Section 183, then the amendment in question here is in plain contravention of the constitution, and, of course, null and void and of no effect.
All of the questions presented in the petition for writ of mandamus filed by the appellee and all the arguments made in support thereof in the lower court are fully answered in the case of Brister v. Leflore County, 156 Miss. 240, 125 So. 186. At the outset of this case it is to be remembered that the appellee is a non-profit private corporation and, of course, has title and owns and operates a hospital, the management, employment and operation of this hospital being under the control of a Board of Directors composed of private citizens. The court, in the Brister case, with reference to making appropriations to aid of corporations, said: "In Adams v. Jackson Electric Railway, Light Power Co., 78 Miss. 887, 30 So. 58, it was held by this court that a fund forfeited to a municipality by one company of its contract to construct an electric light plant and street railway could not be donated to another company on the completion of the work, the contract between the latter company and the city having no reference to that fund. The court inter alia said: `In the case at bar this was an appropriation of the money of the city to a corporation, and so in direct and palpable violation of section 183 of our Constitution. Under this section no distinction is made between the money of a city in its public or private capacity. The inhibition is clear, distinct. Cities are positively forbidden to make appropriation in aid of corporations.' The same case was again before the court in Jackson Electric Railway, Light Power Co. v. Adams, 79 Miss. 408, 30 So. 694, and the holding was reaffirmed, although, as is to be noted, the corporation was a public service corporation." ( 156 Miss. 245).
Although it is argued that the appellee is a non-profit corporation acting only for the benefit of the public, the question arises as to whether it is a public or private corporation. The court in the same case in answer to this question, said: "Dealing with the question whether a hospital corporation is a public or private corporation, the Supreme Court of New York, in Van Campen v. Olean General Hospital, 210 App. Div. 204, 205, N.Y.S. 554, 555, said: `Public corporations are the instrumentalities of the state or of a subdivision thereof, founded and owned by it in the public interest, supported in whole or in part by public funds, and governed by managers deriving their authority from the state or from a subdivision thereof.' And this is in effect the definition laid down in State v. V. N.R. Co., 5 Miss. 368, above quoted. `A corporation therefore is not a public corporation merely because it is founded for a public charity . . . While an institution founded . . . for purposes of general charity such as a hospital for the poor, the sick, the disabled or the insane may well be regarded as a public institution yet in the sense of the law a far more limited, as well as a more exact, meaning is intended by a public institution or corporation.' 14 C.J. 73; 7 R.C.L. 39, 40. In Detroit Museum of Art v. Engle, 187 Mich. 440, 153 N.W. 700, 702, it is tersely and accurately said: `It is of no importance how public the aims and purposes of a corporation may be, unless it takes on the form of a municipal agency, it is still under the ban of the constitutional inhibition.' In that case a constitutional provision similar to our section 183 was involved, and the court went on to say further: `The object and purpose of relator is a public purpose in the sense that it is being conducted for the public benefit, but it is not a public purpose within the meaning of our taxing laws, unless it is managed and controlled by the public.' But we need not extend the citation of authorities. They are overwhelming both in number and in force of argument that a corporation such as the King's Daughters and Sons Circle in this case is a private and not a public corporation, and the ultimate test is this: Is its continuity, and its control and management, under the power of the public through public agents who are responsibly accountable to the government?" ( 156 Miss. 246, 247.)
The court in the recent case of Chance et al. v. Mississippi State Textbook Rating and Purchasing Board et al., 190 Miss. 453, 200 So. 706, (free textbooks to schools), with reference to Section 258 of the Constitution, said: "Such funds are not appropriated `toward the support of any sectarian school', nor does the furnishing of such books to the pupils in properly qualified private schools constitute a pledging or loaning of the credit of the state `in aid of any person, association, or corporation' in contravention of section 258 thereof. The books belong to, and are controlled by, the state; they are merely loaned to the individual pupil therein designated; their preservation is fostered by exaction of suitable compensation for their loss or damage; the duty of protection through fumigation against contagion by use is assumed by the state.
"The privilege of requisition by qualified private or sectarian schools for the loan of such books to its pupils does not place in such school the `control of any part of the school or other educational funds' of the state. The mere availing of benefits of an appropriation lawfully made does not result in a control of such funds. Its use is controlled, only by the purpose for which the legislature designated it. Nor is the loaning of such books under such circumstances to the individual pupils a direct or indirect aid to the respective schools which they attend, although school attendance is compulsory." ( 190 Miss. 474, 475.)
The amendment is also unconstitutional in that it violates Section 14 of the Constitution, in that public money cannot be appropriated or a loan of credit given to a private corporation. In Miller v. Tucker, 142 Miss. 146, 105 So. 774, the court said: "To allow money to a private person or organization, to be dispensed according to the will and judgment of such private person, uncontrolled by law, would be to take the taxpayer's property without due process of law contrary to section 14 of the state constitution, and to the Fourteenth Amendment of the constitution of the United States.
"By section 3577, Code of 1906 (section 6194, Hemingway's Code), the funds to be used for the relief of paupers are to be raised by an assessment of the board of supervisors and collected as other taxes. Taxes can only be raised and used for public purposes." ( 142 Miss. 188).
In Carothers v. Town of Booneville, 169 Miss. 511, 153 So. 670, the court said: "It will be seen from an analysis of the act that the credit of the town of Booneville is pledged for the payment of the bonds proposed to be issued, and that the municipality was not authorized to operate a manufacturing enterprise itself, but only authorized to issue bonds for the purpose of erecting a factory and to purchase a lot for such purpose. The act is one strictly in aid of a private corporation, and it is well settled in this state that taxes cannot be levied for private purposes. Lowry v. Greenville (Miss.), 122 So. 198; Lowry v. Clarksdale, 154 Miss. 155, 122 So. 195; Miller v. Tucker, 142 Miss. 146, 105 So. 774; Brister v. Leflore County, 156 Miss. 240, 125 So. 816; Ferrell v. Rufe Doak, 152 Tenn. 88, 275 S.W. 29, 46 A.L.R. 590; 26 R.C.L. 59; 61 C.J. 88, sections 18 and 19, and cases cited in the notes." ( 169 Miss. 516.)
In the Albritton case cited, supra, the court, in concluding the majority opinion, said: "The only benefit to which the taxpayer is constitutionally entitled is that derived from his enjoyment of the privileges of living in an organized society, established and safeguarded by the devotion of taxes to public purposes. See Cincinnati Soap Co. v. United States, supra, 301 U.S. 308, 57 S.Ct. 764, 81 L.Ed. 1122." ( 181 Miss. 112).
In view of the above authorities cited herein I submit that the amendment in question is unconstitutional.
F.G. Thomas, Noel Monaghan, T.J. Tubb, Frank E. Everett, Jr.,
T. Harvey Hedgepeth,
Section 86 of the Constitution enjoins the legislature to provide for the treatment and care of the insane and states that "the legislature may provide for the care of the indigent sick in the hospitals in the state." The constitution does not say in the hospitals of the state, or hospitals owned, maintained or operated by the State, but says hospitals in the state. The manner and method of providing for such treatment and care is not limited by the constitution and the manner, method, and means which the legislature employs to carry out its lawful duty to the people is not to be questioned by the courts and in all fairness it must be presumed that the legislature considered it wise, economical and practical to take care of the indigent sick in the hospitals in this state in a manner, among others, as provided by the act in question. In the case of Board of Supervisors Warren County v. Vicksburg Hospital, Inc., 174 Miss. 533, 163 So. 382, with reference to taxation against hospitals and exemptions, at page 385, the court said: "As we have said the legislature evidently desired to be just. For many years the legislature had been appropriating money to municipally and privately owned hospitals whether or not operated for profit upon the compliance of such hospitals with certain conditions imposed by the legislature for the unfortunate citizens who needed charity hospitalization. We might say that the legislature by this action since 1920 has made the care of this class of the state's citizens a public purpose."
We contend that the legislature must or should have known how acute the problem was in respect to the treatment and care of the indigent sick, what facilities existed in the state therefore, what the cost to the state had been, what the cost to the state would be in providing facilities in state owned institutions to take care of the multitude of indigent sick who could not be taken care of under existing facilities and in fact every conceivable factor involved in such a far-reaching problem, and that the legislation in question was simply the result of proper inquiry and an effort made to approach, at least partly, such a great public need. In this respect we feel sure that the court will take judicial notice of the general situation over the state in respect to hospitalization, treatment and care of the indigent sick and especialy the fact that such treatment and care is largely done in hospitals and facilities where such treatment and care is offered to private patients and that it is practical, convenient and expedient to afford such treatment and care in institutions of such character, as well as necessary as so put into the preamble to the Act in question.
As to section 183 of the Constitution we can not see where it has any application. Appellant states in his brief that in his search of the authorities he "does not find a case where it is expressly held that section 183 would prohibit the state from making appropriations or loaning or pledging its credit in aid of any person, association, or corporation". Section 183 deals exclusively with political subdivisions of the state, it says so in plain language, easy to understand. But appellant would have the court to say that such section should be construed along with section 258 of the Constitution, that is to say, that since section 183 places additional prohibitions against political subdivisions of the state such additional prohibitions should be read into section 258, which only prohibits the state from pledging or loaning its credit, but does not by its plain language prohibit the same from making an appropriation in aid of any person, association, or corporation. We say that the two separate provisions of the Constitution deal with entirely separate propositions both having their separate historical background well known to the bar and bench generally especially concerning the evils such sections sought to remedy. Thus applying such rule of construction it becomes crystal clear that the convention of 1890 never intended that there should ever be read into Section 258 the prohibition against the state making an appropriation, amounting to a donation or a gratuity, otherwise section 66 of the Constitution would be a mockery and utterly ridiculous. The latter section of the Constitution contemplates legislative action in respect to donations and gratuities and requiring that such be made by the concurrence of two-thirds of the member elect of each branch of the legislature (but never for a sectarian purpose). The act in question and the appropriation bills thereunder met such requirements.
We disagree with appellant's thinking that in the Albritton case "the court held in effect that the reasoning applied to Section 183 of the Constitution also applied to Section 258 of the Constitution". Quite to the contrary. The Albritton case involved a political subdivision of the State and accordingly the attack on the constitutionality of the Act there challenged was made, primarily in respect to Section 183, but as to section 258 the court said (178 So. 810) "This section provides that `the credit of the state shall not be pledged or loaned in aid of any person, association, or corporation' etc. If this section should be held to prohibit the state from authorizing its political subdivisions to pledge or loan their credit in aid of persons and private corporations, as to which we express no opinion, its inapplicability here will appear from the preceding discussion of Section 183 of the constitution." That is all the opinion of the court said with reference to section 258. It is true that Justice Griffith in his specially concurring opinion in that case said that unless certain provisions were made in the lease of the public property in question "there would be a donation or gratuity pro tanto in manifest conflict with section 183 and 258" (p. 811) and likewise Justice Anderson in his dissenting opinion stated the act before the court violated sections 183 and 258, but Justice Anderson pointed out a political subdivision of the state could do no more than the state and even "without section 183, section 258 would prohibit municipalities and other political subdivisions of the state from doing what the state itself could not do" (p. 813).
Such logic in no wise implies a reverse situation, and we feel sure that the appellant does not mean to say that because one provision of the constitution prevents a political subdivision of the state from doing an act it thus follows that the state may not so act. Political subdivisions are creations of the state. "Since the county is a subdivision of the state, created for administrative and other public purposes, and owes its creation to the state, it is subject at all times to legislative control, except where specific provisions of the constitution govern". (Syllabus, State ex rel. Knox v. Board of Supervisors of Grenada County, 105 So. 541.)
Therefore if there is no constitutional authority for the act though we contend there is, as shown above, and if there is any prohibition against the same, though we contend there is not, it must be found in Section 258 of our constitution.
For the purposes of considering the act in the light of Sections 258 we shall for the moment forget Sections 5, 6 and 86, and we shall call the grant-in-aid, as authorized by subject act an appropriation or a donation or a gratuity. If so, then what? First we find that section 66 of the constitution implies that the legislature shall have the power to make a donation or a gratuity and we have shown that the act in question, in its passage, met the requirements of such section by the overwhelming vote of the two branches of the legislature, which was likewise true with reference to the appropriation measure providing funds for use in making such grants. We can not find, as the appellant admits he can not find, any decision of our court prohibiting such. We point out what our court said in the case of Board of Supervisors v. Vicksburg Hospital, Inc., 163 So. 328, in regard to the long practice of the legislature in appropriating money to municipally and privately owned hospitals and we are sure that the court will now take judicial notice of the many acts of the legislature making appropriations and donations specially to fair and dairy shows and expositions, agricultural exhibits and the like, not publicly controlled in the legal sense of the word. We do not mean to say the legislature is unbridled, and can use the funds of the state in any manner whatsoever; there are, of course, constitutional limitations and particularly the due process clause, but the exercise of such right should and must of reason follow lines of that which is for the good and well-being of the general public to which the rights of any one person or group must yield. Or stating the proposition as found in the case of State v. J.J. Newman Lumber Co., 102 Miss. 802, 59 So. 923. "The legislatures of the states have the right under their police power to enact proper laws to regulate and provided for the `safety, the health, the morals and the general welfare of the public'. A state cannot by its laws unduly and unnecessarily interfere with a person in the exercise of his inherent rights or the unlimited control and use of his property, but there was no purpose in the fourteenth amendment to the constitution of the United States to prevent in any manner the state from making the proper regulations for the promotion of the health, peace, morals, education and good order of the people" (from syllabus in State Reports of cited case).
We, of course, contend that the act does not by its language or by implication provide for the pledging or loaning by the state of its credit, and a pledge or loan of credit is in no sense of the word synonymous with a grant or donation. A grant or donation is certain and fixed the liability of the state is known, the legislature is aware of the financial position of the state, its ability to make such a grant or donation while a pledge or loan of its credit is uncertain and may or may not result in a liability, the results can not be foreseen and may lead to great and unexpected burden upon the state and result in much mischief.
We say further that section 183 of the constitution preceded section 258, both were a part of the Constitution of 1890, and the adopting convention undoubtedly considered each in the light of the other, it would have been a simple matter for the convention to have written into section 258 the few words necessary to make it conform to section 183 in respect to the inhibition as applied to appropriations, and in the light of these circumstances and especially in view of Section 66 we think the convention with intent omitted such provisions from section 258.
We cannot conceive how subject act violates the due process clause of our constitution, section 14, or the federal due process clause, 14th amendment.
In the case of Green, etc., v. Frazier etc., Governor, etc., U.S. Supreme Court, 64 Law Ed. 878, 253 U.S. 253, the question of due process and legislative power were discussed at length. This was an action by taxpayers of the State of North Dakota v. The Governor, and other state officers, and the Industrial Commission to enjoin the enforcement of certain legislation which was in reality against an act of the legislature creating an Industrial Commission, authorized to manage utilities, banks, industries, enterprises and business projects to be established by law. In that case the court held: "With the wisdom of such legislation and the soundness of the economic policy involved we are not concerned. Whether it will result in ultimate good or harm is not within our province to inquire." "In many instances states and municipalities have in late years seen fit to enter upon projects to promote the public welfare which, in the past have been considered entirely within the domain of private enterprise." "Courts as a rule have attempted no judicial definition of a `public' as distinguished from a `private' purpose, but have left each case to be determined by its own peculiar circumstances. Gray Limitation of Taxing Power, 176".
In the recent case of Averson v. Board of Education etc., 91 L.Ed. 711, decided at the October term, 1946 of the Supreme Court of the United States, with reference to transportation of children to secular schools, and refunding of the money spent for transportation, the court said: "Headnote 4, The Fourteenth Amendment did not strip the states of their power to meet problems previously left for individual solution" and further in headnote 6 "Nor does it follow that a law has a private rather than a public purpose because it provides that tax-raised funds will be paid to re-imburse individuals on account of money spent by them in a way that furthers a public program" citing Carmichael v. Sou. Coal Co., 301 U.S. 495, 518, 81 L.Ed. 1245, 1258, 10 ALR 1327, in which case the court said, P. 1256 headnote 16: "Headnote 16. This court has long consistently recognized that the public purposes of a state, for which it may raise funds by taxation, embrace expenditures for its general welfare. Fallbrook Irrig. Dist. v. Bradley, 164 U.S. 112, 158, 41 L.Ed. 369, 388. "The states by their constitutions and laws may set their own limits upon their spending power, . . . but the requirements of due process leave free scope for the exercise of a wide legislative discretion in determining what expenditures will serve the public interest."
In support of appellant's contention that the act violates Section 14 of the Constitution, the case of Miller v. Tucker, 142 Miss. 146, 105 So. 774, is cited. Such case contained, among other things, charges by the state revenue agent that the Board of Supervisors of Warren County had illegally expended public funds by payment to King's Daughters Hospital, amounts in excess of certain sums previously authorized through an act of the legislature to be donated by the county (Chapter 265, Laws of 1908, and Chapter 317, Laws of 1912, page 363). The two acts in question being local and private. The Board of Supervisors of that county was authorized to donate $10,000.00 to King's Daughters Hospital, Vicksburg, Mississippi. The law did not say how the money was to be used. We do not think the facts in that case are similar enough to the facts in the instant case to bring the latter within the condemnation of constitutional law and it is particularly noted that the court said that to allow public money to be turned over to a private person "uncontrolled by law" would be to take the taxpayers' property without due process of law contrary to Section 14.
And in that case it was shown that the King's Daughters Hospital was the judge of who were paupers or charity patients and we think it is fitting to mention, and the court undoubtedly takes judicial notice of the fact that the practice in the state for admission of charity patients to hospitals in the state is by a determination made by state boards as to who shall be the object of such bounty of the state and as to appellee hospital, the board consists of three members appointed by the Governor, two from Lee County and one from Itawamba County; and the state hospital board, which handles the charity patients per capita fund has public duties to perform concerning the use of charity patients funds. At any rate, we adhere to the proposition that subject act clearly set forth a public necessity, that the grants to be made thereunder are for the health and general welfare of the public, including the indigent sick, and that it is not contemplated that the grants will be made indiscriminately by the Commission on Hospital Care, but will be made under the state-wide plan promulgated, so as to reach all of the people over the entire state and be made under such conditions imposed by law and by the agency of the state as necessary to effectuate a relief for a pressing public need.
Appellant cites Carothers v. Town of Boonville, 169 Miss. 511, 153 So. 670. Our answer to that case is quite brief. It involved Section 183 of the constitution, not Section 258; the act declared unconstitutional was as the court said, in the Albritton case, "strictly in aid of a private corporation"; the act was not predicated on the idea of relieving employment or for the promotion of the general welfare of the public and the legislature made no declaration of policy or finding of fact justifying the need of such legislation.
Similarly Adams v. Jackson Electric Railway, Light Power Co., 78 Miss. 887, 30 So. 58, is not persuasive, the cited case is controlled by Section 183 of the Constitution and clearly the transaction involved amounted to an appropriation of the money of a municipality to a private corporation for gain, and the transaction had no statutory authority, predicated on general welfare, public necessity or otherwise.
Coming now to the case of Brister v. Leflore County, 156 Miss. 240, 125 So. 186, cited by apellant, we have this to say: The statute therein under attack involved Section 183 of the Constitution and not Section 258. The court cited as authority the case of Adams v. Jackson Electric Railway, Light Power Co., supra, as holding that "cities are positively forbidden to make appropriations in aid of corporations".
The discussion then centers upon the proposition of whether or not King's Daughters and Sons Circle of Greenwood is a public or private corporation, and of course, if private could not lawfully receive the aid, contemplated by the act. There is no inference or suggestion that there would be any inhibition against the state doing that which the statute attacked authorized Leflore County to do. There it is true that some effort was made to show that the hospital was public controlled in respect to the spending of the money to be donated to it. That is, the Board of Supervisors and the City of Greenwood will have representation on a board, or a committee, in the spending of said money, and as the act further says "in the management of said new hospital, or hospitals, when erected". The opinion of the court says that "when the money is expended, it will be represented by property, the title to which is in the hands of a private corporation, whose stock holders or board of directors, being under no legal control by the state or county, will have the full legal power to sell and convey said property and divert it from the public uses intended".
Assuming for the sake of argument that Section 183 had some application to instant case, still we find that the act which we are upholding amply takes care of the situation found wanting in the Brister case, and in fact in our case there is a "reasonable control" and there is the legal equivalent of any control and dominion over the property or donation given as the law might contemplate and furthermore it is interesting to note that Justice Griffith in his opinion in the Brister case pointed out some steps which if followed would remove the constitutional objection, namely that the county, city and the private hospital enter into a three way arrangement whereby the majority control shall remain in the public or else the services to be rendered be covered by their obligatory contract of such specific provisions that the same may be enforced in a court of competent jurisdiction by the public authorities. Therefore, assuming further for the sake of argument, that our case would involve Section 183 of the Constitution and assuming that the relation between the state and appellee would have to conform to the tests thus laid down, we still say that such tests have been fully met.
The case of Chance v. Mississippi State Textbook Rating Board et al., 190 Miss. 453, 200 So. 706, with reference to Sections 201 and 208 of the Constitution of Mississippi is cited — Section 208 in part reads: "No religious or other sect shall ever control any part of the school or educational funds of this state; nor shall any funds be appropriated toward the support of any sectarian school or to any school that at the time of receiving such appropriation is not conducted as a free school". This was suit to prevent the textbook rating board from distributing free textbooks to private and sectarian schools. Section 23 of the act stated it was intended to loan the books free of cost to children in the first 8 grades, in free elementary public schools of the state. In that case the court said in part, page 711 (So.) quoting from Board of Education, etc. v. Wheat, 174 Md. 314, 199 A. 628, "Whether it (the use of public funds) is private within the rule appears to be, finally, a question whether it is in furtherance of a public function in seeing that all children attend some school, and in doing so have protection from traffic hazards. School attendance is compulsory and attendance at private or parochial schools is a compliance with the law. . . . The danger of perversion to private purpose may be admitted, but the legislature is primarily entrusted with the care of that, and the courts have no duty in relation to it unless and until a perversion should be obvious. The fact that the private schools, including parochial schools, receive a benefit from it could not prevent the legislature's performing the public function".
As to public funds as a gift, the case of Veterans' Welfare Board v. Riley, 206 P. 631, gives a full discussion. This case is quoted in numbers of decisions, and is a leading case.
One final quotation from the Albritton case and we will leave it, at page 807, (So. Rep.) our court quoted from 1 Hares American Constitutional Law, p. 286. "If the end be public, it matters not that it is attained through a private channel".
In conclusion we say this: Appellee, although a private non-profit membership corporation along with other similar institutions within the range and scope of the state-wide hospital plan will become vehicles of the state in respect to the performance of a duty of the state in providing facilities for the treatment of the sick and more especially for providing for the treatment and care of the indigent sick, for aught we know the arrangements as provided by the act may work a hardship and become a financial burden upon such institutions and there is a strong possibility that such will be the result, but institutions of such character are founded for one purpose, and one purpose only and that is to render service to those acutely ill, within the reach of its facilities, and all without profit to a single person associated in membership with such associations. We think the plan of the legislature is wise, sensible and economical and we want to emphasize the following points which the law and contractual agreements cover in so far as public protection is concerned.
Appellee will be required to provide at least 10% of its bed space for the treatment and care of the indigent sick; it shall operate the hospital at least 20 years on a non-profit basis under the general supervision of the Mississippi Commission on Hospital Care; it shall operate such hospital on such non-profit basis for such period of time, with maximum benefits at minimum cost to the patient, under record keeping as provided by the Commission and under the observation of the Commission.
It shall keep said hospital open to all doctors, if in good standing with the medical profession, who may treat their patients in the hospital, rules and regulations for the administration of the hospital shall be established under a "yard stick" provided in the contract; it shall comply with the minimum standards of maintenance and operation to be set up by the Commission, and as amended from time to time; it shall join in a state-wide plan of hospital facilities making a well planned system of hospitals throughout the state for the benefit of all the people as a whole; it shall contribute funds, when available, for the purpose of carrying on a state-wide program of nurses education to be inaugurated and carried out by the Commission; it shall furnish statistical and accounting data to the Commission and maintain records harmonious with other hospital records throughout the state so that this may be done and so that the statistical data will be of great benefit to the Commission and its planning of state-wide hospital facilities.
The appellee filed a petition for a writ of mandamus against appellant in the Circuit Court of Hinds County; the appellant filed a demurrer thereto, which demurrer was overruled and the appellant declined to plead further and appealed to this Court.
Since for the purpose of this hearing the demurrer admits all the facts set out in the petition, it is necessary to detail those facts. The petition alleges that the North Mississippi Community Hospital is a non-profit, nonsectarian corporation organized and chartered under Chapter 100 of the Mississippi Code of 1930. A copy of the charter of incorporation is filed as an exhibit to the petition and shows that appellee is, in fact, a nonprofit corporation, that it is organized for the public good and as a benevolent and charitable undertaking for the general welfare of the public; that its purpose is the establishment, support and maintenance as a benevolent undertaking and for the general welfare, of a private hospital, and for affording charitable and benevolent treatment of acutely ill and indigent persons and affording the facilities for the treatment of all acutely ill persons without regard to race, color, or creed; that the general welfare of society, not individual profit, is the object for which the corporation is created, and that the members thereof are not stockholders in the legal sense of the term and that no dividends or profits shall be divided among them. The petition also alleges that for the purpose of carrying out its objects, the appellee erected a hospital now located within the corporate limits of the City of Tupelo, Mississippi, and has continuously operated said hospital in accordance with the powers granted by this charter since its completion about the year 1935.
The petition further alleges that the appellee is such a corporation as contemplated by clause (b), Section 1 of House Bill 164, enacted by the Legislature of the State of Mississippi at its regular 1948 session, which Act was an amendment to Section 6 of Chapter 363 of the Laws of Mississippi of 1946; that by due and proper resolution of its board of directors appellee sought to obtain a grant of aid in accordance with said statutes, and submitted to the Mississippi Commission on Hospital Care copies of its charter of incorporation, its constitution and by-laws, and inventory of its existing facilities, evidence that the Treasury Department of the United States has granted it an exemption from income and certain other taxes, and evidence that the Mississippi State Tax Commission has likewise granted exemption from such taxes; that the appellee has submitted deeds to its real property and evidence of funds on hand in the amount of $100,000 as its share of the cost in the enlargement of its facilities, and has submitted proper application to said Commission on Hospital Care, accompanied by plans, drawings, and specifications in respect to the enlargement of its facilities, and that by said application it sought the approval by said Commission of a grant in an amount tentatively fixed at $205,880, of which $103,920 is to come from State funds and $101,960 from Federal funds, channeled through said Commission.
The petition further alleges that said Commission has made investigation and has found and determined that the hospital of appellee is reasonably necessary as an integral part of the state-wide hospital plan, that there exists in the area to be served by same a pressing need for the hospital and the enlargement thereof, that said hospital is located at a place where it will best serve the needs of its area, and that funds available for such enlargement program will be adequate for such purpose, and that the hospital of appellee is so erected and the enlargement thereof will be so completed and so equipped that the same will be operated in accordance with the standards, rules and regulations prescribed by said Commission to provide for the indigent sick and to promote the public health and welfare, and that said institution will be continuously owned, operated and controlled on a strictly nonprofit basis; that the appellee has agreed to enter into a formal contract with the Mississippi Commission on Hospital Care to carry out the purposes of said statutes so as to insure the location, design, construction, and operation of said hospital in such manner that the services thereof will be available to the people of Mississippi served by said hospital at the lowest possible cost and to further insure that appellee shall adequately and properly provide for the indigent sick and encourage and promote the health and general welfare of the people in the area which said hospital shall serve, and that said contract shall also insure that the public funds alloted to said hospital shall be spent under the direction and control of the Mississippi Commission on Hospital Care.
There is exhibited a copy of said application which shows that appellee agrees to bind itself in every respect in accordance with the aforesaid statutes as contractual covenants effective as such independently of the force and effect of said laws, that it shall at all times make available at least 10% of the bed capacity of its hospital as charity facilities for the use of charity patients qualified under the State Charity Hospitalization Law, that the books, records and accounting system of appellee shall be in accordance with the recommendations of said Commission and subject to its inspection at any time, that the hospital will be operated with the purpose of providing maximum hospital benefits to the citizenship at minimum cost to the patient, that appellee will comply with the minimum standards of maintenance and operation as adopted by said Commission and as they may be amended from time to time, that appellee's hospital and all its facilities shall be available at all times as a part of the state-wide hospital plan sponsored by said Commission, that it will contribute funds, equipment and personnel which it may have or can make available toward the promotion and carrying on of a state-wide program of nursing education to be inaugurated and carried on by said Commission in cooperation with participating hospitals, all to the extent and in the manner provided and contemplated by the terms of Chapter 363 of the Laws of 1946, that all construction contracts will be performed by the lump sum, fixed price, contract method, upon competitive bidding, to the lowest responsible bidder after final working drawings and specifications shall have first been approved by said Commission, and that said Commission and its representatives will have access at all times to the work during the preparation and progress thereof. The application contains other obligations assumed by appellee which are unnecessary to mention herein.
The petition further alleges that at a meeting of said Commission duly held on August 16, 1948, a resolution was unanimously adopted approving the application of appellee for such grant in federal and state funds for the enlargement of the facilities of said hospital, and a certified copy of said resolution is attached as an exhibit to the petition.
The petition further alleges that appellee has incurrred certain legitimate expenses amounting to the sum of $165, which expenditure has been made for a purpose for which appellee would be entitled to assistance pro rata from the state in the amount of $55, and that said item of expenditure has been submitted to, approved, examined, and found to be in good order by, said Commission and that said Commission has approved and allowed the payment thereof from said funds to be charged against the total grant of said funds approved and set up by said Commission for advancement to appellee, and said Commission has directed the chairman and the executive director of the Commission to execute and deliver to appellee a requisition upon the auditor of public accounts of the State of Mississippi for the immediate cash advancement of said funds in said amount of $55, a copy of which requisition is attached as an exhibit to the petition; that thereupon said requisition was forwarded to appellant with request for issuance of a warrant on the state treasury for the payment thereof and that appellant refused to issue said warrant, and that said refusal was not a discretionary act and was not for the reason that funds were not available in the state treasury and was not for want of a proper appropriation by the Legislature of the State of Mississippi and was not for any reason of insufficiency in the form, context or otherwise of said requisition, but that such failure and refusal was based solely upon advice from the office of the Attorney General of Mississippi, and that said failure and refusal to issue the requested warrant was an act of default in the performance of an official duty imposed by valid law upon the appellant.
The petition further alleges that said House Bill No. 164 of the 1948 session of the Legislature was enacted by the concurrence of more than two-thirds of the members of each branch thereof, and that in order to make possible the proposed grants-in-aid as provided by the aforesaid statutes, the Legislature of the State of Mississippi cause to be appropriated funds deemed sufficient for such purposes, such appropriation being House Bill No. 1008, and that said appropriation bill was enacted by the concurrence of more than two-thirds of the members of each branch of the Legislature.
The petition further alleges that the act of default of the appellant deprives appellee of moneys which it is now lawfully entitled to and that without the issuance of such warrant requested by appellee there is no manner, method or means by which appellee can collect and receive said money from the state treasury; that appellee is entitled to a writ of mandamus to compel appellant to perform his duty in the premises and that appellee has no other plain, adequate and speedy remedy in the ordinary course of law, and that the issuance of such a writ would in nowise adversely affect the public interest.
Appellant's only ground of demurrer to the aforesaid petition is that House Bill No. 164, Chapter 430, Laws of 1948, is null and void in that it violates Sections 14, 183 and 258 of the Mississippi Constitution of 1890. The demurrer having been overruled by the lower court, the sole question presented by this appeal is the constitutionality of said House Bill 164. To get the background of said House Bill 164 it is necessary to review briefly the law which it amends, viz., Chap. 363 Laws of 1946.
By the said Act of 1946 the Legislature created the Mississippi Commission on Hospital Care, provided for its appointment terms of office and compensation of its members, and authorized it to adopt rules for the transaction of its business and to keep permanent and complete public records and minutes of all its proceedings. Said Commission was designated as the agency of the State of Mississippi to set up and administer any state-wide plan for the construction, equipping and maintenance of hospitals, nurses' homes, health centers, clinics and related facilities which are now or may hereafter be required to comply with any federal law, and to receive and administer any funds that may be provided by an act of Congress for such purposes and that may be made available for such purposes from any other sources, public or private. Among other things said Commission was authorized to require compliance with minimum standards of maintenance and operation by hospitals receiving federal or state aid under said chapter, and the duty was specifically enjoined upon the Commission to prepare and develop a state-wide hospital plan having as its long-time objective the establishment of a sufficient number of hospital and clinic facilities in this state to serve the needs of the state and to make such facilities reasonably accessible to the entire population of the state. The Commission was also charged with the duty to make grants-of-aid to properly constituted authorities to acquire real estate and to construct thereon hospitals, nurses' homes, health centers, clinics and related facilities throughout the state, including the reconstruction, remodeling, or addition to any hospital facility which has been or may be acquired by such local authorities for use as a community hospital, each such structure to be an integral part of the state hospital plan, and to enter into contracts with local hospitals or hospital groups so as to insure that such hospitals will be located, designed, constructed and operated in such manner that the services thereof will be available to the people of Mississippi at the lowest possible cost. Section 6 of said Chapter 363, Laws of 1946, limited the aforesaid grants-in-aid to publicly owned and operated institutions.
Said Section 6 was amended by House Bill 164, Chapter 430, of the Laws of 1948, so as to provide that said grants-of-aid may be made not only to publicly owned and operated institutions but also to "those non-profit institutions owned and operated by a corporation or association no part of the net earnings of which inures, or may lawfully inure, to the benefit of any private shareholder, group or individual." The amendment provides that such nonprofit institution shall be subject to and governed by all the provisions of this chapter in all functions which are a part of the state hospital plan; that grants shall be made only when the Commission shall find and determine that such hospital or other facility is reasonably necessary as a part of the long-range, state-wide hospital plan, that there exists in the area to be served a need for the hospital or other facility, that it will be located at a place where it will best serve the needs of said area, that the funds available will be adequate, and that the hospital will be erected, equipped and operated in accordance with the standards prescribed by the Commission and on a strictly nonprofit basis. The amendment further provides that if any hospital to which a grant is made shall, at any time, within twenty years after the date of such grant, be sold or transferred to any person, agency or organization which is not qualified to receive a grant or which is not approved as a transferee by the Commission, or cease to be a nonprofit institution, a lien in favor of the state shall attach to the property thereof and the state shall be entitled to recover from the transferrer or transferee (or, in the case of an institution which has ceased to be a nonprofit organization, from the owners thereof) the amount of money advanced by the state to such institution less reasonable depreciation. The amendment also provides that no payment of money shall be made until the site, plans and specifications for the location, construction and equipping of such institution, or the improvement, enlargement or expansion of any existing facility shall have been approved by the Commission; that the Commission shall satisfy itself completely that the sources of funds for the permanent maintenance of the hospital are adequate to insure its continued efficient maintenance and operation, and that the Commission shall have the right to inspect the books of local hospitals and to counsel with local management in order to assist in maintaining sound accounting principles, efficient management, and a high standard of service.
From the foregoing it will be seen that the Legislature has thrown reasonable safeguards over the construction, enlargement, expansion and operation of hospitals and related facilities owned by nonprofit, nonsectarian corporation such as the appellee in this case, to the end that such facilities shall be made available to the people of this state, without regard to race, color or creed, as an integral part of the over-all, long-range, state-wide hospital plan set up by the Legislature, and to the end that at least 10% of all hospital beds shall be set aside for use by strictly charity patients and that the remainder shall be available to pay-patients at the lowest possible cost consistent with efficient management and operation in accordance with the regulations of the Mississippi Commission on Hospital Care. By Chapter 79 of the Laws of 1948 the Legislature appropriated five million dollars to said Commission for the purpose of carrying out the provisions of the above mentioned statutes and provided that against said appropriation "the state auditor shall issue his warrant upon requisition signed by the proper person, officer or officers in the manner and for the purpose and within the amounts provided for by law."
Appellant contends that the amendment here under attack violates Section 14 of the Mississippi Constitution of 1890, which provides "No person shall be deprived of life, liberty, or property except by due process of law." In support of this position appellant quotes one brief excerpt from Miller v. Tucker, 142 Miss. 146, 105 So. 774, 780, to the effect that "To allow money to a private person or organization, to be dispensed according to the will and judgment of such private person, uncontrolled by law (Italics supplied), would be to take the taxpayer's property without due process of law contrary to section 14 of the state Constitution, and to the Fourteenth Amendment of the Constitution of the United States." That case dealt with illegal appropriations of money by a board of supervisors and is wholly different on the facts from the case at bar; there the only violation of Section 14 of our state constitution was found in the fact that the money so appropriated was to be dispensed according to the will and judgment of a private person and uncontrolled by law. The foregoing summary of the statutes and facts in the case now before us shows that the money appropriated to appellee is not to be dispensed at the will and judgment of appellee, uncontrolled by law, but, on the contrary, is to be expended under the rules and regulations and supervision of a state agency. In speaking of "due process of law" this Court said in the case of Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 804, 115 A.L.R. 1436, (Hn 1) "When applied to substantive rights it is now interpreted to mean that the government is without the right to deprive a person of life, liberty, or property by an act that has no reasonable relation to any proper governmental purpose, or which is so far beyond the necessity of the case as to be an arbitrary exercise of governmental power." (Hn 2 (1)) The law now under attack is clearly a statute which does bear a reasonable relation to a governmental purpose as expressed in Section 86 of the Mississippi Constitution of 1890 which provides "It shall be the duty of the legislature to provide by law for the treatment and care of the insane; and the legislature may provide for the care of the indigent sick in the hospitals in the state." We therefore find that Section 14 of the Constitution is not violated by Chapter 430 of the Laws of 1948.
Appellant also contends that said chapter violates Section 183 of our constitution which provides that "No county, city, town, or other municipal corporation shall hereafter become a subscriber to the capital stock of any railroad or other corporation or association, or make appropriation, or loan its credit in aid of such corporation or association." (Hn 2 (2)) It will be noted that the quoted section applies only to counties and municipalities. We are not here concerned with any appropriation of a county or municipality, but only with one made by the Legislature directly out of the state treasury, and the cases dealing with a violation of Section 183 have no application here.
Appellant finally contends that said chapter violates Section 258 of the Mississippi Constitution of 1890 which provides: "The credit of the state shall not be pledged or loaned in aid of any person, association, or corporation; and the state shall not become a stockholder in any corporation or association, nor assume, redeem, secure, or pay any indebtedness or pretended indebtedness alleged to be due by the state of Mississippi to any person, association, or corporation whatsoever, claiming the same as owners, holders, or assignees of any bond or bonds, now generally known as `Union Bank' bonds and `Planters Bank' bonds."
(Hn 2 (3)) A sufficient answer to this contention is that under said Chapters 430 and 79 of the Laws of 1948 the Legislature has not attempted to pledge or loan the credit of the state, but has simply appropriated funds already in the state treasury pursuant to the authority of Section 66 of the Mississippi Constitution of 1890 which provides "No law granting a donation or gratuity in favor of any person or object shall be enacted except by the concurrence of two-thirds of the members elect of each branch of the legislature, nor by any vote for a sectarian purpose or use." We do not base this decision solely upon the section just mentioned, nor do we hold that the Legislature has the unbridled authority to donate public money to private purposes even by a two-thirds vote of both houses, but we do hold that the legislature has the authority to appropriate public funds out of the state treasury for the care of the indigent sick in the nonprofit, nonsectarian hospitals of this state in accordance with the above quoted Section 86 of the Constitution, particularly where the expenditure of such funds for such purpose is under the supervision and control of a state agency. Our conclusion is abundantly supported by the case of Albritton v. City of Winona, supra, from which we quote briefly. (Hn 3) "`The end being legitimate . . . the means is for the legislature to choose,' Carmichael v. Southern Coal Coke Co., 301 U.S. 495, 57 S. Ct. 868, 876, 81 L.Ed. 1245, 109 A.L.R. 1327, the only limitation thereon under due process being that the means chosen must not be so far beyond the necessity of the case as to be an arbitrary exercise of governmental power. . . . Growth is the life of the law, and when it ceases to grow and keep pace with social and economic needs it becomes a hindrance instead of an aid to the public welfare. . . . `If the end be public, it matters not that it is attained through a private channel.' Hares American Constitutional Law, p. 286."
The judgment of the lower court is therefore affirmed.
Affirmed.