c37:No. 2303

ANDERSON, Circuit Judge
(dissenting). Practically, the question in this ease is whether the United States, for present purposes a body of taxpayers, should take from the town of Braintree, another body of taxpayers, $30,419.89, the income of which is annually applicable to the support of the publie schools of the town. Legally,, the question is whether Revenue Act 1921, c. 136, 42 Stat. 227, is to be construed as adopting the legal fiction (presumption) that a woman, of whatever age or physical condition, is childbearing. If the truth is admissible in applying this aet, it is undisputed that this life tenant is not childbearing; the government rests its case solely on the fiction, claiming that the truth (shown in evidence) must be disregarded.
Undoubtedly the presumption is generally adopted in England and in the United States. 22 C. J. 124; List v. Rodney, 83 Pa. 483, 492; Hill v. Trust Co., 295 Ill. 619, 129 N. E. 554. But it is not universally held not open to a showing of the real facts. First Nat. Bank v. Snead (C. C. A.) 24 F.(2d) 186; Male v. Williams, 48 N. J. Eq. 33, 21 A. 854; May v. Bank, 150 Ky. 136, 150 S. W. 12, and in 48 L. R. A. (N. S.) 865-875.
Charitable gifts are always favored by the law, as is shown by the broad and liberal application of the cy pres doctrine. Jackson v. Phillips, 14 Allen (Mass.) 539, and cases cited.
Tax acts are to be rather strictly construed; Gould v. Gould, 245 U. S. 151, 38 S. Ct. 53, 62 L. Ed. 211. This means, I think, that exemptions, especially to public charities, are not to be killed by resorting to legal fictions. Tax funds are property devoted to publie uses; so are gifts to publie charities. There is every presumption that Congress did not intend to divert to its particular publie uses money already applicable to the same kind of uses. Neither nation nor state may tax the properties of, or even the salaries paid by, the other. Dobbins v. Erie County, 16 Pet. 435, 10 L. Ed. 1022; Metcalf & Eddy v. Mitchell, 269 U. S. 514, 521, 46 S. Ct. 172, 70 L. Ed. 384, and eases cited; Collector v. Day, 11 Wall. 113, 20 L. Ed. 122; General Laws of Massachusetts, c. 62, § 5(b); Biscoe v. Tax Commissioner, 236 Mass. 201, 203, 128 N. E. 16. I am therefore constrained to the view that Congress intended the act to be construed in the light of the shown truth, and that the decision of tho Board of Tax Appeals should be reversed.

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