c30:No. 7500

CLARK, Circuit Judge
(dissenting).
I think my learned brethern buttress their view unnecessarily. This seems to me a pity since I happen to believe that the especial buttress selected, however beautiful in outward form, is internally unsound. As I understand them, they say that the trust of the case at bar is religious because religion includes what particular people think to be an ethical- way of life. That seems to me to be confusing the sanctions with the things sanctified. But whatever it may seem to me is not important because this is what it has seemed to the United States Supreme Court. Mr. Justice Field said :
“The term ‘religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.” Davis v. Beason, 133 U.S. 333, 342, 10 S.Ct. 299, 300, 33 L.Ed. 637.
As I began by saying, this appears supererogation. I am quite willing to concede a trust is as much within the word “religious” as is the word “charitable” of the statute. My difference with my distinguished colleagues is, as I think, more fundamental. These statutes employ language that has a background in legal history; generous giving is encouraged by both enforcement and exemption. An examination of that background reveals inter alia the identical disagreement involved here. For that reason, I believe the analogy exact and am correspondingly surprised at its omission from the opinions of the United States Courts and, because of that perhaps, of the parties to this litigation.
Any extended discussion of the Statute of Elizabeth and the incorporation of the theory of its preamble in English and American law would be pedantic. The problem is its augmentation by analogy. It is plain that any emanation from Elizabethan days cannot be currently conclusive. The exact scope of any addition, however, is not so plain. The courts have been liberal. They have, in fact, found a “charitable” purpose to be synonymous with whatever is of social interest and benefit to the community. As that changes with the community, with the century, and maybe with the “Chancellor’s foot”, there has not been complete uniformity of decision. Professors Zollmann and Scott and the authors of the Restatement of Trusts have furnished detailed enumerations. The concern here is with that type of charitable purpose which is described by Lord Halsbury as “the promulgation of particular doctrines or principles” and by Professor Scott as “the dissemination of beliefs or doctrines”.
The deduction is claimed on a bequest in the will of the pious daughter of a pious father. The denominational cloak of that piety was the Methodist Church in whose flock the father had been a leading bishop. No doubt wishing to hand on his torch, the testatrix willed a considerable sum to the Board of Temperance, Prohibition, and Public Morals of the Methodist Church. This Board was authorized in 1908 by the lawmaking body of the Methodist Episcopal Church. Thereafter, and in 1917, it was incorporated under a Certificate which read:
“To promote the cause of temperance by every legitimate means; to prevent the improper use of drugs and narcotics; to render aid to such causes as in the judgment of the board of trustees, tend to advance the public welfare.” Certificate of Incorporation, Para. 3.
And at the pertinent date, 1932, it was operating under a Constitution, Article 1 of which stated:
“The object of this Board is to promote voluntary total abstinence from all intoxicants and narcotics, to promote observance and enforcement of all constitutional provisions and statutory enactments that suppress the liquor traffic and the traffic in narcotic drugs, to promote the speedy enactment of such legislation throughout the world.” Section 2 (italics ours).
The last phrase of the Board of Temperance’s Constitution is so explicit that one need not examine its fully corroborating activities nor be troubled by any niceties of dominant and servient purpose.
The choice, therefore, is between two conflicting lines of authorities. It is agreed that the wisdom or popularity of the particular cause for which the money is given is not for the courts. So, even causes that are in such irreconcilable conflict as anti-vivisection and medical research by experimentation upon living animals; and the promotion of peace by disarmament and by preparedness for war, have been approved. Indeed, in the very field of the principal case there has been disagreement. Whatever has been said in favor of temperance, many decry the virtue of total abstinence. Counsel’s quotation of the proverb, “Wine is a mocker, strong drink is raging” might be answered by a reference to Plato’s Dialogues.
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Original: Plato, Laws, Book II, p. 672 (1 Bury, Plato, Laws, p. Í56).
By the English view, a trust is not charitable if the attainment of its purpose, involves a change in existing law. The best known judicial expression thereof is by Lord Parker. The learned law Lord said: “The abolition of religious tests, the disestablishment of the church, the secularization of education, the alteration of the law touching religion or marriage, or the observation of the sabbath, are purely political objects. Equity has always refused to recognize such objects as charitable * * * a trust for the attainment of political objects has always been held invalid, not because it is illegal, for everyone is at liberty to advocate or promote by any lawful means a change in the law, but because the court has no means of judging whether a proposed change in the law will or will not be for the public benefit, and therefore cannot say that a gift to secure the change is a charitable gift.” Bowman v. Secular Society Limited, [1917] Appeal Cases 406, 442.
In the discussion of a trust factually akin to the case at bar, the doctrine has received exposition:
“The position of a trust dealing with the promotion of temperance was first considered by the court in The Commissioners of Inland Revenue v. The Temperance Council of Christian Churches of England and Wales (136 L.T.Rep. 27). The Temper-anee Council of the Christian Churches of England and Wales was a body the purpose and object of which was Jto take united action to secure legislative and other temperance reforms’. From the wording of their objects and a consideration of their activities, it was clear that the first object of the Council was to obtain legislation for promoting temperance. The Council held certain income-producing investments, and the Commissioners of Inland Revenue applied by case stated to determine whether the income of the Council was exempted from income tax on the ground that the interest and dividends formed part of the income of a body of persons established for charitable purposes and had been applied for charitable purposes only. Mr. Justice Rowlatt held the Council was constituted mainly with the direct purpose of effecting changes in the law. Whether these changes were wise or unwise; whether they were pursued on party lines or quite independent of political party he considered wholly immaterial. Such a purpose could not be called a charitable purpose. He could not, having regard to the facts, consider the promotion of temperance as the Council’s primary obj ect, and obtaining legislation as a subsidiary object so as to bring the case within the principle laid down in Re Scowcroft; Ormrod v. Wilkinson ((1898) 2 Ch. 638). He therefore held that the income of the Council was riot exempted from tax.
“The decision of Mr. Justice Rowlatt in the Commissioners of Inland Revenue v. Temperance Council of England and Wales turned entirely on the legislative activities of the Council, and did not substantially touch the question whether, if the object of the Council had been the promotion of temperance reform alone, the income would have been the income of a charity and exempt from taxes.” The Promotion of Temperance as a Charitable Purpose, 171 L.T. 222, 223.
It is true that in this country only the Judges of Massachusetts have been persuaded by their English brethren. The cases are collected by Professor Scott in 3 Scott on Trusts, §§ 374.4, 374.5, 374.6, and in notes in the American Law Reports Annotated and in various law reviews.
I believe the numerically inferior decisions to be logically superior and so prefer to follow England and Massachusetts. The promulgation of causes in that group called the State is usually in three stages. The particular cause may be studied, it may be advocated, or finally that advocacy may extend to a plenary form. The proponents of a “way of living” may so strongly believe in its wisdom and its righteousness that they wish to bind all dissidents. It is just at this point that the courts divide. The English judges give the simplest reason for their position. They emphasize an additional uncertainty. Ultimate benefit lies generally in the field of prophecy. It depends upon the merits of the cause itself. The relation between accomplishment and compulsion is even more problematical.
I suggest two, as I think, equally persuasive, if rather more subtle considerations. The courts have, as I said earlier, somewhat paraded their neutrality. A “big hearted” donor could espouse the queerest things and the fact that he or she might be a minority of one made no difference. It is hardly consistent, then, to turn around and approve the compulsion of minorities. Some of it is essential to government. The minority in favor of murder must be restrained. Let the state establish its own policy on such matters without help from volunteers among the population. And furthermore, let those who compose the voice of the state, the members of its legislative body, do so without being subject to even permissible “lobbying”. I say “permissible” because the courts have only obj ected to the secret influence type. Undoubtedly, however, there is a faint odor of harm in the use of money to present only one side of any proposition. To paraphrase, it may place the Lord on the side of the heaviest money-bags. Although, therefore, one may not object, he may assuredly refrain from encouraging — either by way of offering the state’s help in enforcement or in subvention.
Cf. Hopkins, The History of Religions, p. 2; Frazer, The Golden Bough, 3rd Ed., i. 222.
The Federal estates tax allows a deduction for bequests “to or for the use of any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes”, Int.Rev.Code, § 812(d), 26 U.S.C.A. Int. Rev.Code, § 812(d); § 303(a) (3) of the Revenue Act of 1926, 26 U.S.C.A. Int. Rev.Acts, page 234; § 403(a) (3) of the Revenue Acts of 1921 and 1918, 42 Stat. 279, 40 Stat. 1098.
This I understand to be conceded by the majority.
Charitable Trusts — Trust—Purpose— Political Agitation and Repeal of Existing Daws, 4 Southern California Daw Review 418 (note).
Slee v. Commissioner, 2 Cir., 42 F.2d 184, 72 A.D.R. 400* ; Deubuseher v. Commissioner, 2 Cir., 54 F.2d 998; Vanderbilt v. Commissioner, 1 Cir., 93 F.2d 360; Montgomery v. United States, 63 Ct.Cl. 588; Old Colony Trust Co. v. Welch, D. C., 25 F.Supp. 45; cf. Weyl v. Commissioner, 2 Cir., 48 F.2d 811; Gimbel v. Commissioner, 3 Cir., 54 F.2d 780; In re Moore’s Estate, 66 Misc. 116, 122 N.Y.S. 828; Paul and Mertens, Federal Income Taxation, §§ 29.20 through 29.32.
* This case is discussed by Professor Scott in 3 Scott on Trusts in his chapter on Charitable Trusts, § 374.4 headed Changes in existing law.
“ * * * some for relief of aged, impotent and poor people; some for maintenance of sick and maimed soldiers and mariners, schools of learning, free schools, and scholars in universities; some for repair of bridges, ports, havens, causeways, churches, sea-banks and highways; some for education and preferment of orphans, some for or towards relief, stock or maintenance for houses of correction, some for marriages of poor maids, some for sup-portation, aid and help of young tradesmen, handicraftsmen and persons decayed, and others for relief or redemption of prisoners or captives, and for aid or ease of any poor inhabitants concerning payments of fifteens, setting out of soldiers and other taxes.” Stat. 43 Eliz., c. 4 (1601).
4 Halsbnry’s Daws of England, 2d Ed., Charities, p. 107; 3 Scott on Trusts § 348.2, History of charitable trusts in England, § 348.3, Charitable Trusts in the United States; Zollmann, American Daw of Charities, Chapter I, Statute of Elizabeth, Chapter II, American Development.
4 Halsbury’s Daws of England, above cited, p. 122; 3 Scott on Trusts, above cited, § 368.1, The Statute of Charitable Uses; Zollmann, American Daw of Charities, above cited, Chapter IV, What Is A Charity, §§ 191, 192, 193.
2 Restatement of Trusts, Chapter II, Charitable Trusts, Topic 3, § 368b, The nature of charitable purposes; 3 Scott on Trusts, above cited, § 368, What purposes are charitable.
2 Restatement of Trusts, above cited, § 374f, Community purposes; 3 Scott on Trusts, above cited, § 368, What purposes are charitable.
Zollmann, American Law of Charities, above cited, Chapter V, Religion, Chapter YI, Benevolence, Chapter VII, Education, Chapter VIII, Municipal Purposes; 3 Scott on Trusts, above cited, § 369 et seq. Relief of poverty; § 370 et seq. Advancement of education; § 371 et seq. Advancement of religion; § 372 et seq. Promotion of health; § 373 et seq. Governmental or municipal purposes; § 374 et seq. Promotion of other purposes beneficial to the community; 2 Restatement of Trusts, above cited, Topic 3, § 368, What Purposes Are Charitable; § 369, Relief of Poverty; § 370, Advancement of Education; § 371, Advancement of Religion; § 372, Promotion of Health; § 373, Governmental or Municipal Purpose ; § 374, Promotion of Other Purposes Beneficial to the Community.
4 Halsbury’s Laws of England, above cited, p. 125.
3 Scott on Trusts, above cited, § 370.4.
Lord Hanworth in Re Hood, (1931) 1 Ch. 240.
3 Scott, on Trusts, above cited, § 374.7 ; 2 Restatement of Trusts, above cited, § 374L.
2 Restatement of Trusts, above cited, § 374L; compare Re Foveaux, Cross v. London Anti-Vivisection Society, (1895) 2 Ch. 501, with Re Hummeltenberg, Beatty v. London Spiritualistic Alliance, (1923) 1 Ch. 237, approved in Re Grove-Grady, Plowden v. Lawrence, (1929) 1 Ch. 557.
Old Testament, Proverbs, xx. 1.
“Athenian: The other story implied that wine was given man out of revenge, and in order to make him mad; but our present doctrine, on the contrary, is, that wine was given him as a balm, and in order to implant modesty in the soul, and health and strength in the body.” Translation : 2 Jowett, The Dialogues of Plato, pp. 449, 450.
4 Halsbury’s Laws of England, above cited, p. 137.
In passing upon the trusts of the philanthropic Jackson family of Boston.
Validity of charitable trust to promote change in laws or system or methods of government, 21 A.L.R. 951; "Validity of testamentary trust to promote women’s rights, 28 A.L.R. 720; Gift to prohibit or minimize manufacture, sale, or use of intoxicating liquor as a valid charitable trust, 73 A.L.R. 1361; Trusts— Charitable Use — Bequest to Procure Change in Existing Laws, 71 University of Pennsylvania Law Review 89 (note); Bartlett, Charitable Trusts to Effect Changes in the Law, 16 California Law Review 478; Linton Corporation Organized for Political Purposes As A Charitable Organization, 36 Michigan Law Review 139.
“I shall enter on no encomium upon Massachusetts; she needs none. There she is. Behold her, and judge for yourselves.” Webster, Second Speech on Foot’s Resolution, January 26, 1830, p. 317.
Fairchild, General Sociology, p. 21.
“Joanna Southcote, a foolish and ignorant woman”, Thornton v. Howe, (1862) 31 Beav. 14; cf. “Madam Blavatsky, the Foundress of the Theosophical Movement”, Wills — Theosophical Society As A Charity — Cy Pres Doctrine, 17 Boston University Law Review 911, 912 (note).
Commissioner of Internal Revenue v. Textile Mills Securities Corp., 3 Cir., 117 F.2d 62, 72.
Voltaire, Letter to M. le Riche, February 6, 1770.

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