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the boundary affected, there were 14,621 acres owned by sixty-eight persons; thirty-four persons, owning 5,975 acres, had no agency in procuring the act, which allowed a tax not exceeding twenty-five cents per acre, to be levied. The removal of dams, to allow stagnant and offensive water to flow off, to promote the health of a district of country, is a public purpose.?
$ 23. Purpose Private. The cases of railroads, canals, bridges, schools, bounties and drainage are types of the public purpose which authorizes taxation. A clearer idea
A clearer idea may be obtained by examining the cases where the
has been held a private one. By act of Congress, certain portions of the moneys of the United States were deposited with the States. The State of Maine distributed the amount received as her share among the towns of the State, “to be loaned on ample security, or to be disposed of in the same manner asmoneys raised by taxation." The town of Biddeford distributed the amount coming to that town among " the inhabitants of the town, ac-cording to families.” It was held that the town had no right to give away money collected of the inhabitants by taxation. The inhab-itants of the town of Jay, at a meeting held for that purpose, determined to loan the credit of the town to Messrs. Hutchins & Lane, upon condition that they would move their new saw
mill and box. factory from Livermore Falls to Jay Bridge, and put in operation one run of stones for grinding meal. The amount to be loaned was $10,000 in bonds of the town. The legislature of Maine gave the town authority to make the loan for the encouragement of manufacturing in the town. The act was declared void, the purpose being a private one. “ If there is any proposition about which there is entire and uniform weight of judicial authority, it is that taxes are to be imposed for the use of the people of the State in the varied and manifold purposes of government, and not for private objects, or the special benefit of individuals. Taxation originates from and is imposed by and for the State. The town of Jay stands in the same relation to this new mill, as to all others, so far as regards any public benefit to be derived therefrom. The timber of the inhabitants is. sawed at the usual compensation; their grists are ground for the same customary tolls as those of others. All labor conduces to the public benefit; but because all labor, all productive industry, conduces to the public benefit, does it follow that the people are to be
1 Miller v. Craig, 3 Stockt. (N. J.) 175 ; Talbot v. Hudson, 16 Gray, 417; Dingley v. Boston, 100 Mass. 544; Sessions v. Cruokilton, 20 Ohio, N. S. 349. ? Hooper v. Emery, 14 Me. 379.
3 Allen v. Inhabitants of Jay, 60 Me. 124.
taxed for the benefit of one man, or of one special kind of manufacturing ? The sailor, the farmer, the mechanic, the lumberman, are equally entitled to the aid of coerced loans, to enable them to carry on their business, with Messrs. Hutchins & Lane. Our government is based on equality of right. The State cannot discriminate among occupations, for a discrimination in favor of one is a discrimination adverse to all others.” 1
$ 24. Other Cases of Private Purpose.—In Wisconsin, the city council of Milwaukee exempted a hotel from taxation for the years 1856 and 1857, in view of the great public benefit which the construction of the hotel would be to the city. It was held void ;as was an act of the legislature authorizing the town of Jefferson to raise $5,000 in aid of the Jeffersonian Liberal Institute, whose property was owned by an incorporated company. Where bonds of the city were given to aid in the erection of buildings at or near Iola, Kansas, to be used in manufacturing Z. King's patent bridges, and as a foundry and iron works, the act was declared void, the court saying, “Taxation is a mode of raising money for public purposes ; when it is prostituted to objects in no way connected with the public interest, such as the establishment of a bridge, manufactory or foundry owned by private individuals, it ceases to be taxation and becomes oppression.” 4
And where a foreign insurance company had complied with all the terms which the laws of the State imposed on such companies, afterward an act was passed, requiring the agencies of such companies to pay
cent. of all their receipts to the Philadelphia Association for Relief of Disabled Firemen, and to give bond for its payment. The Royal Insurance Company, of Liverpool, gave the bond; action was brought on the bond. The court held it could not be maintained ; the legislature has the taxing power; this is not a tax; “it is simply a decree that one class of men shall pay to others a share of the profits of their business.” 5 Soon after the great fire in Boston, in November, 1872, an act of the legislature of Massachusetts authorized the city to issue bonds not exceeding $20,000,000, at five per cent. interest, when payable in gold, or six per cent. if payable in currency, the proceeds of these bonds to be loaned to the owners of land in the burnt district, whose buildings had been destroyed by the great fire. Com
* Nat. Bank of Cleveland v. City of Iola, 9 Kans. 689; 8. c. as Topeka v. Loan Association, 20 Wall. 665.
• Philadelphia Asso. etc. v. Wood, 39 Penn. St. 73, 83.
missioners were appointed to manage the loan, and were required to take a first mortgage upon the land, at less than three-fourths its value, as security for the money advanced, at seven per cent. interest. It was held void. And in a late case in Maine, a corporation engaged in the manufacture of brick was declared to be for a private purpose, and one for which the inhabitants of a town could not be indirectly taxed, by exempting the buildings, machinery and capital used and employed in such business."
A corporation was created to unload and move freight in Memphis, and authorized to take private property for its purpose; the use for which such property was to be taken was held to be private, the court drawing the distinction between a public use and a public convenience.. $ 25. When Purpose Public—when Private.
In the cases of the saw-mill, hotel, iron foundry, and brick company, the property was not only owned by private individuals, but was managed and controlled wholly by its private owners; so in the case of the freight company, the State had no direct control over its property and received no direct benefit. It is true it would receive an indirect or incidental benefit, but that it receives from all productive industry. And in the Boston case the benefit was incidental; while in the cases of roads, railroads, canals, schools, bounties, and drainage for health, the benefit derived is direct to all the people of the State. The construction of these works, or the doing of these acts, is a duty of the State to all the people of the State. The purpose, the object, is governmental, although incidentally individuals may be benefited. In the cases declared to be for a private purpose, the object of the act was the benefit of individuals, although incidentally the public was benefited.
Taxes may be imposed for roads of all kinds, canals, and bridges, that there may be facilities for transportation of freight and for travel; for public schools or colleges, that the people may be educated; for public libraries, that their means of improvement may be increased ; for the poor, the dumb, the blind, the insane, lest they suffer from want; for the police of the State, in regulations for the preservation of health or the detection of crime; for courts of law, that individual rights may be protected and enforced, and that crime, when detected, may receive its fitting punishment; for the preservation of peace and the protection of the country from foreign enemies; to aid, encourage and stimulate commerce, domestic and foreign, by the establishment of mints, postal system, and maintaining navies to keep open the highway of nations; to encourage citizens in the defense of their country, by suitable rewards and mementoes for past services in times of war, or by bounties for enlistment for future services; and for the promotion of the arts and sciences. For all these matters taxes may be imposed; the purpose is public; the object is governmental; the money raised and property purchased is held by the agents of the State for the State. The object is so to regulate the State that all its citizens may enjoy their lives, liberty and property, and pursue their happiness according to the dictates of their own reason. On the other hand, where the purpose is to establish a saw-mill, a brick company, an iron foundry, a hotel, or to support disabled firemen by forced contributions from one class of persons exclusively, the object is not governmental ; it is to promote primarily the interests of individuals. The convenience of the public may be promoted, but the property is that of the individual, who may use it as he thinks proper, independent of any special public control. When the facts of a case show the act to come within the first class, it is valid ; when it clearly comes within the latter, the courts whose province it is to decide whether the purpose be public or private will declare it void. The only exception to the rule is the case of a theater company, incorporated with powers to build a theater and to take fire and marine insurance risks. An act of the legislature, causing a municipal subscription to the stock of this company, was held valid, on the ground that “it would contribute to the wealth and embellishment, and afford a place of relaxation and amusement, and would tend to correct and enlighten the
1 This case is on the provision of the Constitution of Massachusetts, that the power of taxation shall be exercised only "for the public service, in the necessary defense and support of the government of said commonwealth, and the protection and preservation of the subjects thereof." Am. Law Review, July No. 1875, p. 766, and 111 Mass. 473. But the Constitution only asserts a principle of the essence of free government. See also Jenkins v. Andover, 103 Mass. 94; 13 Am. Law. Reg. 493,494; Lowell v. Boston, 111 Mass.454.
2 Brick Co. v. Inhabitants of Brewer, 14 Am. Law Reg. (Dec. No.) 735.
* Memphis Freight Co. v. Memphis, 4 Cold. (Tenn.) 419, 425; see, also, Tyler v. Beacher, 44 Vt. 656.
4 The extent of the control of the State may be a matter of debate, but that there is the power inherent in the State to control corporations on whose behalf the right of eminent domain is exercised, would seem to be plain law.
1 Brick Co. v. Inhabitants of Brewer, 14 Am. Law Reg. (Dec. No.) 735 ; Sharpless v. Mayor of Philadelphia, 21 Penn. St. 147, 169, 170.
· See Hitchcock v. St. Louis, 49 Mo. 484. Donations to an orphan asylum not under the control of the city, a private purpose. Judge Redfield's note to Allen v. Inhabitants of Jay, 13 Am. Law Reg. 497, 600; what is public use, Sedgwick Stat. and Const, Law (2d ed.) 446-450, note a; especially gas company, Bloomfield Gaslight Co. v. Richardson, 63 Barb. 437; sewerage of a city, Hildreth v. Lowell, 11 Gray, 348; aqueduct and water-works companies for supply of cities with water, Reddall v. Bryan, 14 Md. 444; Barden v. Stein, 27 Ala. 104; Lombard v. Steavens, 4 Cush. 60; Mayor, etc. v. Bailey, 2 Denio, 452 ; park or highway for pleasure, Matter of Central Park, 63 Barb. 282; 'In re Mount Washington R. R. 35 N. H. 134; all of these held to be for public use.
morals of the citizens.” 1 This case is adverse to the whole current of authority on the subject. There was a failure of crops in Kansas ; the legislature authorized the towns to raise money for the purpose of providing destitute citizens of such towns with provisions, and grain for seed and feed. It was held that the purpose was not public. It was not for the benefit of the indigent, but of those who have fields to till and stock to care for.?
First Municipality v. New Orleans Theater Co. 2 Rob. (La.) 209. · State v. Osawkee, 14 Kans. 418.