Opinion of Attorney General
Rustgard on Pensions
Hon. William L. Paul,
Member of House of Representatives,
Juneau, Alaska.
Dear Sir:
In your communication to this of
fice under date of 26th ultimo, you
submit the question as to whether
or not Chapters 44 and 46 of the
laws of 1923 are valid. Your ex
pressed doubt on the subject is based
upon the exclusion of the natives of
Alaska from the benefits of those
acts.
Chapter 44 provides assistance for
indigent mothers of “white” children
under the age of 16 years. Chapter
46 provides an allowance to indigent
men and women of advanced age
who are without means of support.
The act expressly excludes from par
ticipation in its benefits “any native
or other Indian.”
it will be observed tnat under tne
former chapter no aid can be given
to a mother whose child is of partly
negro or partly native Indian blood,
but can be given only where the
child of such mother belongs to
the white race—that is, to one of
the “European” races. The latter
chapter affords an allowance to all
needy residents, whether men or
women, who have past a specified
age limit prescribed by the act,
provided they do not belong to or
are descended from a native Indian
race.
The question now arises as to
whether or not this discrimination
in favor of the white race and
against certain other races inhabit
ing Alaska renders these two acts
void.
Ine money expended under these
acts for the assistance of certain
indigents is raised by public rev
enues, and the primary question to
be answered is whether or not such
expenditure is for a private or for
a public purpose—for an unlawful
or for a lawful purpose. If this
purpose is unlawful the acts are void.
The fifth amendment to the Fed
eral Constitution provides that “no
person shall be deprived of life,
liberty or property without due proc
ess of law.”
The fourteenth amendment to the
Constitution provides that “no State
shall * * * deny to any person
within its jurisdiction the equal pro
tection of the laws.”
Section 1977 R. C. provides:
“All persons within the jurisdic
tion of the United States s^all have
the same right in every State and
Territory * * * to the full and
equal benefit of all laws and pro
ceedings for the security of persons
and property as is enjoyed by white
citizens, and shall be subject to like
punishment, pains, penalties, taxes,
licenses and exactions of every kind,
and to no other.”
Section 9 of the Organic Act of
the Territory, which defines and
limits the power of the Legislature,
provides among other things “nor
shall the Legislature grant to any
corporation, association, or individual
any special or exclusive privilege,
immunity or franchise without the
affirmative approval of Congress,
nor shall the Legislature pass local
or special laws in any of the acts
enumerated in the Act of July 30,
1S86; nor shall it grant private
charters or special privileges.
The aforementioned Act of July
30, 1886, inhibits the Legislature
from “granting to any corporation,
association, or individual any special
or exclusive immunity or franchise
whatever,”
At the present tune it is reason
ably well settled that the equality
clause of the 14th amendment to the
constitution is addressed only to the
States aid not to the Federal Gov
ernment or to Territories, but it is
also settled that the section from
the “Civil Rights Act” above quoted
(Section 1!>77 It. S.) is designed to
apply the principles of the 14th
amendment to the Territories as well
as to the States, and by virtue of
its provisions all persons irrespect
ive of race must be given full and
equal benefit of all laws.
It seems quite clear that the dis
crimination in favor of the white
race, so clearly expressed in the
legislative enactments under consid
eration, is in conflict with the ex
plicit inhibitions of the various con
stitutional provisions and Congres
sional acts above quoted.
1 he daik skinned races are ex
cluded from the enjoyment of those
benefits which the Acts bestow upon
the whites, and the latter are grant
ed privileges which are denied other
races. This being seemingly above
dispute, the question presents itself
as to whether or not public funds
can be disbursed for purposes pro
hibited by the above quoted limita
tions upon the power of the Legis
lature.
It is a well settled principle of
Constitutional law that no tax can
be levied except for the purpose of
raising money which is to be expend
ed for the public use. This principle
is fundamental and underlies all
government that is based on reason
rather than force. To lay with one
hand the power of the government
on the property of the citizens and
with the other to bestow it upon
favored individuals is held to be
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,” said the Supreme
Court in a well known and leading
case.
The courts have uniformly held
that to collect a tax or to disburse
public funds for any but public pur
poses or for purposes otherwise dis
countenanced by law' is to take the
property of the tax payer “without
due process of law’” in violation
both of the 5th and the 14th amend
ment to the constitution.
It was this principle of the law
which President Coolidge evidently
had in mind in his recent inaugural
address when he stated:
“The collection of any taxes which
are not absolutely required, which
do not beyond reasonable doubt con
tribute to the public welfare, is only
a species of legalized larceny. The
only constitutional tax is the tax
which ministers to public necessity.”
Obviously, it is as illegal to levy
taxes for private purposes or for
private benefits as it is to levy
taxes for purposes expressly pro
hibited by the constitution or by
such enactments as define the power
of legislative authority. One can
no more be defended than the other.
It must follow that the right to
make appropriations of money from
the public treasury must be meas
ured by the same test as that by
which it is raised by taxation and
put into the treasury. If taxes
could not be imposed for a purpose,
money already in the treasury
could not be appropriated for that
purpose. A gift of the public funds
to an individual when no public
purpose is directly subserved is be
yond the poyer of the Legislature.
l o constitute public use ot public
funds the benefit must be bestowed
upon those who will enjoy it as
members of the public and not as
individuals,—it must be so bestowed
that it can be enjoyed by all who
are similarly situated and without
regard to color, creed, or previous
conditions of servitude. In conso
nance with these general principles
it has been held by the courts that
public authorities may not divert
public funds for the maintenance of
a private institution from the ben
efits of which the trustees of the
institution have a right to exclude
any citizen at their pleasure.
The power of the state to expend
the public funds for the relief of