338. Charitable Institution.—An institution that limits its benefactions to the members of a particular denomination is, in the absence of a statute to the contrary, a charitable institution.[604] This rule has exceptions.[605]
339. Charter, Real Estate.—The trustees of a religious, literary, or other benevolent society, can not, irrespective of the powers granted by its charter, purchase and hold real estate under trusts of their own creation which will protect their property from creditors.[606]
340. Mortmain, Title, Trust.—The statute of mortmain was never in force in Pennsylvania, so a religious corporation can hold the legal title to land in trust for the heir-at-law of a testator who has devised it to the corporation in trust for uses that [pg 181] were void under the English law.[607] The only States that have statutes of mortmain are Mississippi and North Carolina. Yet in those States the statutes are somewhat different from the law of England.
341. Public Institutions, Support.—Benevolent and charitable institutions under a church are not public institutions, and moneys can not be appropriated for their support.[608]
342. Nuns, Vows, Property.—When joining a society of nuns, one of the vows taken was that all property should be held in common and whatever property was received after taking the vows should belong to the society. A person who left the order was not concluded from making claim for her property.[609]
Chapter XXVI. Schools
343. Parent, Education, State, Parochial Schools.—The right of the parent to use judgment as to the proper necessaries of his child, including board, lodging, and education, is generally conceded. However, there must be no abuse of these parental rights, as the child also has rights that even a parent can not infringe. Therefore, the State may require a reasonable opportunity for the education of every child; and if the parent can not give it on account of his poverty, it is in the power of the State to take his child in charge and furnish him an education. The right of the State to make laws requiring a parent to send his child to school between certain ages, as from four to twenty-one years, is well settled. The question of the parent's being obliged to send his child to the public schools or being forbidden to send his child to a private or parochial school, is not settled in some States; but it is being settled in favor of the parent. The Kentucky constitution contains this provision: “... nor shall any man be compelled to [pg 183] send his child to any school to which he may be conscientiously opposed.”[610] The right of the State to supervise or inspect private and parochial schools under the police power of the State can not be questioned.[611]
344. Orphan Asylums, School Moneys.—In 1850 the New York Legislature enacted a law as follows: “The schools of the several incorporated orphan asylums within the State other than those in the city of New York, shall participate in the distribution of the school moneys in the same manner and to the same extent in proportion to the number of children educated therein, as the common schools in their respective cities and districts.” The court ruled that moneys devoted by the constitution to the State for the support of common schools could not be distributed under the act, for the reason that such asylums are not public schools; but moneys from other sources might be paid for the education of such orphan children in proportion to their number to those educated in the common schools of their respective cities and districts.[612] The schools kept by the Roman Catholic Orphan Asylum [pg 184] Society of the city of Brooklyn, are not common schools within the meaning of the constitution, and a provision of law that such schools should share in the distribution of school moneys raised by the State was void.[613]