This is a proceeding under the provisions of the Gen. Sts. c. 18, § 79, to restrain the city of Boston from issuing its bonds for the purpose of raising a fund to be appropriated to the object of rendering aid, by way of loans, in rebuilding upon that portion of the city which was burned over in November 1872. The issue of bonds for that purpose, to an amount not exceeding $20,000,000, was expressly authorized by the St. of 1872, c. 364. The question, therefore, is distinctly presented whether the authority thus conferred upon the city is contrary to the provisions of the Constitution of the Commonwealth.
The issue of bonds by the city, whatever provision may be made for their redemption, involves the possible and not improbable consequence of a necessity to provide for their payment by the city. The right to incur the obligation implies the right to raise money by taxation for payment of the bonds; or, what is equivalent, the right to levy a tax for the purposes for which the fund is to be raised by means of the bonds so authorized.
It is a question, not of municipal authority, but of legislative power. The point of difficulty is not as to the distribution of the burden by allowing it to be imposed upon a limited district within the State; but as to the right of the Legislature to impose or authorize any tax for the object contemplated by this statute.
The power to levy taxes is founded on the right, duty and responsibility to maintain and administer all the governmental functions of the State, and to provide for the public welfare. To
The principle of this distinction is fundamental. It underlies all government that is based upon reason rather than upon force. It is expressed in various forms in the Constitution of Massachusetts. In Art. XI. of e. 2, § 1, by restricting the issuing of moneys from the treasury to purposes of “ the necessary defence and support of the Commonwealth; and for the protection and preservation of the inhabitants thereof, agreeably to the acts and resolves of the General Court.” In Art. IV. of-c. 1, § 1, by declaring the purposes, for which the power of taxation, in its various forms, may be exercised by the General Court, to be 66 for the public service, in the necessary defence and support of the government of the said Commonwealth, and the protection and preservation of the subjects thereof”’ The purport and scope of these provisions are made more distinct, and the essential idea upon which they rest is disclosed by reference to the preceding Declaration of Rights, by which the theory and purpose of this frame of government were set forth J)y its founders. Art. X. declares, “ Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property,
The power of the government, thus constituted, to affect the individual in his private rights of property, whether by exacting contributions to the general means, or by sequestration of specific property, is confined, by obvious implication as well as by express terms, to purposes and objeсts alone which the government was established to promote, to wit, public uses and the public service. This power, when exercised in one form, is taxation; in the other, is designated as the right of eminent domain. The two are diverse in respect of the occasion and mode of exercise, but identical in their source, to wit, the necessities of organized society; and in the end by which alone the exercise of either can be justified, to wit, some public service or úse. It is due to their identity in these respects that the two powers, otherwise so unlike, are associated together in the same article. So far as it concerns the question what constitutes public use or service that will justify the exercise of these sovereign powers over private rights of property, which is the main question now to be solved, this identity renders it unnecessary to distinguish between the two forms of exercise, as the same tests must apply to and control in each. An appropriation of money raised by taxation, or of property taken by right of eminent domain, by way of gift to an individual for his own private uses exclusively, would clearly be an excess of legislative power. The distinction between this and its aрpropriation for the construction of a highway, is marked and obvious. It is independent of all considerations of resulting advantage. The individual, by reason of his capacity, enterprise
In the case of a highway, on the other hand, its direct purpose of public use determines conclusively the question in support o£ the exercise, both of the right of eminent domain and of taxation, however trifling the advantage to the public compared with that to individuals. The extent or value of the public use, and the wisdom and propriety of the appropriation, are matters to be de termined exclusively by the Legislature, either directly or by its delegated authority. When the power exists it is not within the province of the court to interfere with its exercise, by any inquiry into its expediency.
The two instances, above referred to, illustrate the sense in which the furthering of the public good by promotion of the interests of many individuals, differs from a public service. A public service may or may not be productive, practically, of public advantage. Resulting advantage to the public does not of itself give to the means by which it is produced the character of a public service.
There are, indeed, many cases in which the sovereign power of government is exercised to affect private rights of property in favor of private parties, either individuals or corporations. Most conspicuous among these are turnpikes and railroads; in whose favor this right of eminent domain is frequently exercised. Private rights are thus taken and transferred, not to the State, but to the private corporation; and the compensation to the persons injured, required by the Constitution, is also rendered from the cor
This right of eminent domain is often allowed to be exercised in favor of private aqueduct companies. Here, too, the public service, intended as the object of the grant of the right, is obvious. And although the intеrests of the aqueduct company are ordinarily relied upon to secure the proper performance of the service, yet, in case of any failure or abuse, the obligation may doubtless be otherwise enforced. Lumbard v. Stearns,
The mill acts, so called, are often referred to as authorizing the exercise of the right of eminent domain by private parties for their exclusive private benefit. And the language of the court, used arguendo, has been sometimes such as to imply that the growth and prosperity of manufacturing and other industrial enterprises were of such importance to the public welfare, as to justify the exercise of the right of eminent domain in their be half, as a public use. Boston & Roxbury Mill Co. v. Newman,
That mills for the sawing of lumber for purposes of building, grinding grain for food, and the manufacture of material for clothing, may be of such necessity to a community, especially in the early settlement of a country, as to make their establishment a provision for a public service, we do not question. It is doubtless within the power of the Legislature to declare the existence of a public exigency for the establishment of a mill, for which the right of eminent domain may properly be exercised; as in the casе of the Boston & Roxbury Mill Corporation, and the Salem
The advantages to be derived from a running stream by the several riparian proprietors, are of natural right. Each one may make use of its waters, as they flow through his lands, in a reasonable manner, for such purposes as they are adapted to serve. In order that each may hаve his opportunity in turn, each is entitled to have the water allowed to' flow to and from his land as it has been accustomed to flow, with only such modifications as result from such reasonable use. Hence, all proprietors upon a stream, from its source to its mouth, have, in a certain sense, a common interest in it, and a common right to the enjoyment of all its capacities. Among those capacities no one is more important than that of the force of the current to supply power for the operation of mills. To make that force practicably serviceаble requires a considerable head and fall at the point where it is to be applied; often more than can be gained within the limits of one proprietor. The use of the stream in this mode has always been regarded as a reasonable use, notwithstanding the effect of the dam, by which the head is created, to retard the water in its flow to the proprietor below, and to set it back and thus diminish or destroy the force of the current above. One who thus appropriates the force of the current is in the enjoyment of a common right, in which he is protected, although he may thereby prevent a like use subsequently by the proprietor above. Hatch v. Dwight,
A consideration, still more conclusive to this point, is, that in fact no private property, or right in the nature of property, is taken by force of the mill acts, either for public or private use. They authorize the maintenance of a dam to raise a head of water, although its effect will be to overflow the land of another proprietor. This right of flowage is sometimes inaccurately called an easement. Hunt v. Whitney,
This regulation of the rights of riparian proprietors, both in respect to the stream and to their adjacent lands, liable to be affected by its use, involves no other governmental power than that “ to make, ordain and establish all manner of wholesome and reasonable orders, laws, statutes and ordinаnces,” as the General Court “ shall judge to be for the good and welfare of this Commonwealth, and for the government and ordering thereof, and of the subjects of the same.” Const, of Mass. c. 1, § 1, Art. IV.
All individual rights of property are held subject to this power, which alone can adjust their manifold relations and conflicting tendencies. The absolute right of the individual must yield to and be modified by corresponding rights in other individuals in the community. The resulting general good of all, or the public welfare, is the foundation upon which the power rests, and in behalf of which it is exercised; whether by restricting the use of private property in a manner prejudicial to the public; Commonwealth v. Alger, 7 Cush. 53; or by imposing burdens upon it for the protection or convenience in part of the public; Goddard, Petitioner,
Estates in common may be divided at the suit of any one of the co-tenants ; and if not conveniently or advantageously divisible equally, one may be required to accept less than his full share, with an equivalent in money for the deficiency. Hagar v. Wiswall,
Upon the same principle, proprietors of wharves, or of general fields, affected by a common interest or a common necessity, are allowed to adopt measures to secure their common advantage, although burdens or restrictions result therefrom which must be shared by the minority, as well as the majority, by whose determination the measures were adopted. Gen. Sts. c. 67. Wright v. Boston,
No other power was exercised for the construction of drains and sewers, until 1841, when cities and towns were authorized to exercise for that object the power of taxation. St. 1841, c. 115. The property in such drains and sewers wás by the same act vested in the city or town; so that there was a public use as well as a public service, for which that power was delegatеd. The exercise of the right of eminent domain, for the same object, was delegated to the city of Boston, by the St. of 1857, c. 225, § 1, and to all other cities and towns by the St. of 1869, c. 111.
In the statutes for the improvement of meadows, the provisions for the assessment and collection of the expenses, in form, resemble taxation, and the power exercised over private property is sometimes ascribed to the right of eminent domain. Talbot v. Hudson,
The commissioners have no power to affect any lands of persons not joined as parties in the proceedings, or to assess upon them any part of the expenses. Sherman v. Tobey,
We find in these statutes no exercise of the right of eminent domain, or of the governmental power of taxation. That which, in form, resembles taxation, is, in effect, only an equitable apportionment, among the parties to the proceedings, of the expenses incurred for their common benefit, by their common agents, or rather by the officers of the tribunal charged, by the Legislature with the conduct of those proceedings, w hich it authorizes for the execution of its wholesome and reasonable orders and laws in that
“ The good and welfare of this Commonwealth,” for which “ reasonable orders, laws, statutes and ordinances ” may be made, by force of which private rights of property may be affected, is a much broader and less specific ground of exercise of power than “ public use ” and “ public service.” The former expresses the ultimate purpose, or result sought to be attained by all forms of exercise of legislative power over property. The latter imply a direct relation between thе primary object of an appropriation and the public enjoyment. The circumstances may be such that the use or service intended to be secured will practically affect only a small portion of the inhabitants or lands of the Commonwealth. The essential point is, that it affects them as a community, and not merely as individuals. Cooley Const. Limit. 531. This distinction is indicated, and recognized as vital, in Talbot v. Hudson,
The same principle is developed in Dorgan v. Boston,
In Hazen v. Essex Co.
Without such public use or service expressly declared, or implied from the naturе of the object of the expenditure, taxation in any form cannot be justified. Lowell v. Oliver,
In Morse v. Stocker,
The general result may indeed be thus stated collectively, as a single object of attainment; but the fund raised is intended to be appropriated distributively, by separate loans to numerous individuals, each one of which will be independent of any relation to the others, оr to any general purpose, except that of aiding individual enterprise in matters of private business. The property thus created will remain exclusively private property, to be devoted to private uses at the discretion of the owners of the land; with no restriction as to the character of the buildings to be erected, or the uses to which they shall be devoted; and with no obligation to render any service or duty to the Commonwealth, or to the city,— except to repay the loan, — or to the community at large or any part of it. If it be assumed that the private interests of the owners will lead them to reestablish warehouses, shops, manufactories, and stores; and that the trade and business of the place will be enlarged or revived by means of the facilities thus provided; still these are considerations of private interest, and, if expressly declared to be the aim and purpose of the act, they would not constitute a public object, in a legal sense.
As a judicial question the case is not changed by the magnitude of the calamity which has created the emergency; nor by the greatness of the emergency, or the extent and importance of the interests to be promoted. These are considerations affecting only the propriety and expediency of the expenditure as a legislative question. If the expenditure is, in its nature, such as will justify taxation under any state of circumstances, it belongs to the Legislature exclusively to determine whethet
On the other hand, if its nature is such as not to justify taxation in any and all cases in which the Legislature might see fit to give authority therefor, no stress of circumstances affecting the expediency, importance or general desirableness of the measure, and no concurrence of legislative and municipal action, or preponderance of popular favor in any particular case, will supply the element necessary to bring it within the scope of legislative power.
The expenditure authorized by this statute being for private and not for public objects, in a legal sense, it exceeds the constitutional power of the Legislature; and the city cannot lawfully issue the bonds for the purposes of the act.
This discussion has, for obvious reasons, taken a somewhat wider range than was required for the decision of the case immediately before us. We have purposely confined it to the consideration of judicial decisions and utterances in Massachusetts j because the question is of legislative power under the Constitution of this Commonwealth. The recent decision of the Supreme Judicial Court of Maine, however, in the case of Allen v. Jay, 60 Maine, 124, to which we are referred, is of especial significance and importance from the similarity in the organic law of the two states, and the almost exact identity of the question presented by the facts. It fully sustains the conclusions to which we have been led in this case.
Demurrer overruled. Injunction ordered.