150 Mass. 592 | Mass. | 1890
To the Honorable House of Representatives of the Commonwealth of Massachusetts:
We received on May 24, 1890, your order of May 22, 1890, a copy of which is annexed, and we respectfully submit the following opinion.
In considering the questions asked, we assume that the power to be conferred is not merely a power to receive and use property given in trust for the purposes named, but is a power to raise money by taxation, and by means of it to construct and maintain works for the manufacture and distribution of gas or electricity, to be used by the municipalities for lighting the public streets and buildings, and by the inhabitants for lighting the land and buildings which are their private property.
We also assume that the gas or electricity to be furnished to the inhabitants for their private use is to be paid for by them at rates to be established, which shall be deemed sufficient to reimburse to the cities and towns the reasonable cost of what is furnished, and that all the inhabitants of a city or town are to have the same or similar rights to be supplied with gas or electricity, so far as is reasonably practicable, and the capacity and extent of the works, which it is deemed expedient to maintain, will permit. Whether cities and towns can be authorized to give gas or electricity to their inhabitants, or to sell either to them, at varying and disproportionate prices, selecting their customers, selling to some and arbitrarily refusing to sell to others, are questions which it is not necessary to consider.
By the Constitution, full power and authority are given to the General Court to make “ all manner of wholesome and reason
The extent of the right of taxation is not necessarily to be measured by that of the right of eminent domain, but the rights are analogous. Private property can be taken without the consent of the owner only for public uses, and the owner must be paid full compensation therefor; otherwise, he would contribute more than his proportional share toward the public expenses. By taxation the inhabitants are^ compelled to part with their property, but the taxation must be proportional and reasonable, and for public purposes. Taxes may be imposed upon all the inhabitants of the State for general public purposes, or upon the inhabitants of defined localities for local purposes, and when distinct private benefits are received from public works special assessments may be laid upon individuals.
We have no doubt that, if the furnishing of gas and electricity for illuminating purposes is a public service, the performance of this service can be delegated by the Legislature to cities and towns for the benefit of themselves and their inhabitants, and that such cities and towns can be authorized to impose taxes for this purpose upon their inhabitants, and to establish reasonable rates which the inhabitants who use the gas or electricity can be compelled to pay. The fundamental question is whether the manufacture and distribution of gas or electricity to be used by cities and towns for illuminating purposes is a public service.
The maintenance of public streets and buildings is a public service, and it may be reasonably necessary to light them in order that the greatest public benefit .may be obtained from using them. To say nothing of the usefulness of lighting streets as a means of promoting order and of affording protection to
The second question is one of more difficulty. It is impossible to define with entire accuracy all the characteristics which distinguish a public service and a public use from services and uses which are private. The subject has been considered many times in the opinions of the Court of which we are now the Justices, and Lowell v. Boston
It was early decided that “ the prevention of damage by fire is one of those objects affecting the interest of the inhabitants generally, and clearly within the scope of municipal authority.”
The maintenance of sewers and drains is a public service. One object is the preservation of the public health; but apart from this they are of great convenience to the inhabitants whose estates can be drained by them. It is impracticable for every owner of land in cities and towns to construct and maintain sewers and drains exclusively on his own account; they cannot ordinarily be constructed over any considerable territory without using the public ways, or exercising the right of eminent domain; they are therefore regarded as of common convenience, and are constructed at the public expense.
The furnishing of water for cities and towns for domestic use affords perhaps the nearest analogy to the subject we are considering. It was long ago declared that “ the supply of a large number of inhabitants with pure water is a public purpose.”
In the case of water, as in that of sewers and drains; a por
Artificial light is not, perhaps, so absolutely necessary as water, but it is necessary for the comfortable living of every person. Although artificial light can be supplied in other ways than by the use of gas or electricity, yet the use of one or both for lighting cities and thickly settled towns is common, and has been found to be of great convenience, and it is practically impossible for every individual to manufacture gas or electricity for himself. If gas or electricity is to be generally used in a city or town, it must be furnished by private companies or by the municipality, and it cannot be distributed without the use of the public streets, or the exercise of the right of eminent domain.
It is not necessarily an objection to a public work maintained by a city or town, that it incidentally benefits some individuals more than others, or that from the place of residence or for other reasons every inhabitant of the city or town cannot use it, if every inhabitant who is so situated that he can use it has the same right to use it as the other inhabitants. It must often be a question of kind and degree whether the promotion of the interests of many individuals in the same community constitutes a public service or not. But in general it may be said that matters which concern the welfare and convenience of all the inhabitants of a city or town, and cannot be successfully dealt with without the aid of powers derived from the Legislature, may be subjected to municipal control when the benefits received are such that each inhabitant needs them and may participate in them, and it is for the interest of each inhabitant that others as well as himself should possess and enjoy them.
If the Legislature is of opinion that the common convenience and welfare of the inhabitants of cities or towns will be pro-
We notice that the bill,
Mabcus Mobton.
Walbbidge A. Field.
Chables Devens.
William Allen.
Chables Allen.
Oliveb Wendell Holmes, Jb.
Mabcus P. Knowlton.
Boston, May 27, 1890.
Const. Mass., Part II. Chap. I. Sect. I. Art. IV.
Allen v. Taunton, 19 Pick. 485.
Lumbard v. Stearns, 4 Cush. 60.
This bill was passed by the House, but was referred by the Senate to the next General Court.