execution of an impending draft. When made as a loan to the town or county on the faith of repayment, the act authorizing the repayment is valid, but when made by individuals on their own account, and not on the credit or by the authority of the municipality, the act is invalid. "To direct the repayment of money voluntarily paid by the association to aid its own members, would not be legislation; such an act would be unconstitutional in declaring an obligation where none previously existed, and then decreeing payment by directing the money or property of the people so sequestered to make payment; it would much more resemble an imperial rescript than constitutional legislation." 3

The curative power of subsequent statutes has been carried to its utmost extent in some of these cases. A town voted a bounty tax; Grim was assessed and paid under protest, and brought suit to recover the tax paid to the collector. Afterward the legislature passed an act validating the vote of the town; it was held that if the legislature has the antecedent power to authorize a tax, it can cure by a retroactive law an irregularity or want of authority in levying it, though thereby a right of action which had been vested in an individual should be divested.1

§ 21. Bounty Acts, when Invalid.-These cases are based on the theory that military service due by the citizens of the several States to the United States is an individual duty, resting upon a certain class of citizens, and that the State has no constitutional power to levy an involuntary tax on those not subject to military duty. In the Kentucky cases it was held that all those who aided in procuring the passage of the act to authorize the issuing of bonds to be paid by taxation, to refund the bounties paid to volunteers, were bound; they were estopped by their acts to deny the constitutionality of the act. The Wisconsin case is peculiar; Lent was mustered into the service of the United States on the quota of Oshkosh, Winnebago county, but whether upon that of the city or town of that name is not clear. The treasurer of the city of Oshkosh paid Lent the bounty of $300, believing he was cred

1 Weister v. Hale, 57 Penn. St. 474; Hilbish . Catherman, 64 Id. 164; Johnson v. Campbell, 49 Ill. 316; Cass Township v. Dillon, 16 Ohio, N. S. 570.

Tyson v. School Directors, 51 Penn. St. 9; Miller v. Grandy, 13 Mich. 540; Perkins v. Milford, 59 Me. 315.

Thompson, J., in 51 Penn. St. p. 22. A bounty association of Halifax township raised money by voluntary contribution to pay bounties to volunteers to save the township from draft, at a meeting at which the president had stated that the county commissioners had refused to levy a tax for such purpose. These payments were construed as loans to the township.

4 Wiesenburg School Directors v. Grim, 57 Penn. St. 433.

5 Ferguson v. Landram, 1 Bush (Ky.) 548; s. c. 5 Bush, 230; State v. Tappan, 29 Wis. 672.

ited to the city. He afterward ascertained that Lent was credited to the town, and not to the city of Oshkosh. He sued the town, but did not recover. An act of 1869 made it the duty of the judge of the Tenth circuit to hear and determine the amount paid to Lent, with interest thereon at seven per centum to December 1st, 1869, and costs and expenses incurred in the matter by the treasurer, and directed the award of the judge to be filed with the clerk of the supervisors of Winnebago county, who was to deliver it to the town clerk of Oshkosh, and it was made his duty to add the amount of the award to other taxes to be collected in that town for 1869, and the treasurer of the town was directed to pay it over, when collected, to the treasurer of the city. The court, while admitting the power of the legislature to confer on counties and towns the authority to raise money by taxation, to pay bounties, when voluntarily imposed by a majority of the citizens thereof, or by consent of the municipality, evidenced in some manner, held that the legislature could not compel such action by the municipalities, even if there was a moral obligation upon the town to pay the money. But the tendency of the argument of the court is to show that the obligation to perform military service is purely an individual one.

Commissioned officers are not included in the bounty acts.1

2

§ 22. Drainage and Levee Cases.-Some of the cases hold that the purpose of reclaiming large tracts of swamp or marsh land, so as to fit them for cultivation, is a public purpose, for which the right of eminent domain and taxation may be exercised, and that it is the prerogative of the legislature to decide whether a scheme of improvement of this character is of such public utility as to justify a resort to the exercise of these powers; while others hold that a tax cannot be levied upon any portion of the public, for the construction of a drain which merely benefits the land; even the owner of the land benefited cannot be taxed to improve it; he must be left to improve it or not as he may choose. Public considerations, such as draining for the purposes of health, must be involved to justify such legislation. In Kentucky, where no question of health was involved, it was said to be an appropriation of private property to use of private individuals, a case of palpable and flagrant inequality in the burden imposed. Within

1 Shackford v. Newington, 46 N. H. 415.

2 Tide-water Co. v. Costar, 18 N. J. Eq. (3 C. E. Green), 518, 521; Egyptian Levee Co. v. Hardin, 27 Mo. 495; Daily v. Swope, 47 Miss. 367; Alcorn v. Hamer, 38 Id. 652; People v. Nearing, 27 N. Y. 306.

3

People v. Supervisors of Saginaw, 26 Mich. 22; Anderson v. Kerns Drainage Co. 14 Ind. 199, 202; Reeves v. Wood Co. 8 Ohio, N. S. 333. An act for laying out drains, without limiting it to cases in which public good requires, it is invalid as being for a private use. Cypress Pond Draining Co. v. Hooper, 2 Metc. (Ky.) 350.

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.1

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 may be obtained by examining the cases where the purpose 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 as moneys 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, deter-mined 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. Crunkilton, 20 Ohio, N. S. 349.

2

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

2

§ 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 two per 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

1 Appleton, J., in Allen v. Inhabitants of Jay, 60 Me. 124.

2 Weeks v. Milwaukee, 10 Wis. 242, 263.

3 Curtis v. Whipple, 24 Wis. 350, 354, 355.

* Nat. Bank of Cleveland v. City of Iola, 9 Kans. 689; s. c. as Topeka v. Loan Association, 20 Wall, 655.

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.2

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.3

4

§ 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

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.