can the motives which have influenced the selection of objects for taxation, or determined the rate, be inquired into for the purpose of invalidating it: proper motives in the legislature are always conclusively presumed. If, therefore, it should be conceded that a tariff of duties discriminating between articles of merchandise in order to protect or encourage particular branches of home industry, was unwise, impolitic, or contrary to the spirit of the federal constitution, it could not for that reason be treated as invalid. Of public policy in matters of federal taxation the congress must judge, and the spirit of the constitution is supposed to address itself to the legislature rather than to the courts. Every tax must discriminate; and only the authority that imposes it can determine how and in what directions. The motives that influence the members of a legislative body raise questions between them and their constituents alone. Indeed, it is only when a burden is imposed which it is impossible to bear; one which is laid not for the purpose of producing revenue, but in order to accomplish some ulterior object which the general government lacks the power otherwise to accomplish, that a case is presented which really can be said to be fairly debatable on the score of power. Such a burden, it may be said with much force, comes under no definition of the word "tax" which is recognized in public law. It demands no contributions for the service of the state; it adds and is expected to add nothing to the public revenue. It annihilates that upon which it is levied, and it differs from confiscation only in this, that confiscation seizes something of value, and appropriates it to the needs of the government, thus making it useful, while this seizes it for the purpose of destruction only. But even in such cases, it is held that the presumption that correct motives have controlled the legislative action must preclude the judiciary from looking for a purpose in leg

1 Goddin v. Crump, 8 Leigh, 120, 154; People v. Draper, 15 N. Y., 532, 545, 555; Sunbury & Erie R. R. Co. v. Cooper, 33 Pa. St., 278; Wright v. Defrees, 8 Ind., 298, 302; Baltimore v. State, 15 Md., 376; Newman, Ex parte, 9 Cal., 502; Lyon v. Morris, 15 Ga., 480; McCardle, Ex parte, 7 Wall., 506, 514; Johnson v. Higgins, 3 Met. (Ky.), 566; Flint, etc., Plank Road Co. v. Woodhull, 25 Mich., 99, 103; State v. Hays, 49 Mo., 604, 607; State v. Fagan, 22 La. An., 545.

2 See Story on Const., § 1677; Veazie Bank v. Fenno, 8 Wall., 533, 548.

islation beyond what the language imports. A like presumption supports the action of municipal legislative bodies.2

It is sometimes a requirement of law that taxes should be raised for purposes specified in advance, to which alone the moneys can then be devoted; but in the absence of any constitutional or legislative requirement on the subject, the local authorities are not thus restricted.3

Public purposes in general. For the most part the term public purposes is employed in the same sense in the law of taxation and in the law of eminent domain. But both in the legislation of the country and in the judicial decisions some differences have been recognized, and, as we think, with good reason. An appropriation under the right of eminent domain is only a forced sale which one is compelled to make for the public good. As the consideration paid on such sale is pecuniary, and is supposed to be equal to the full value of what is taken, no injustice results to him whose property is appropriated. On the other hand, no pecuniary consideration is paid when money is demanded under the power of taxation; and if the money is taken in order to be appropriated to private purposes, the benefits which the tax payer might be presumed to receive from its being used for the needs of the government, to enable it to protect and defend him and give him the benefits of organized society in common with its other citizens, are not realized. In such a case the supposed consideration to the individual for taking his property wholly fails. A more liberal construction of public purposes is consequently admissible in the law of eminent domain, where an error in the direction of too great liberality could not be seriously det rimental, than in the law of taxation, where a like error would result in injustice which might be seriously harmful.

There are provisions in a number of the state constitutions. under which one needing a private way across the land of another may have the way established against the will of the

1 Veazie Bank v. Fenno, 8 Wall., 533, 548; Doyle v. Conn. Ins. Co., 94 U. S., 535; Luehrman v. Taxing District, 2 Lea, 425; Sunbury & Erie R. R. Co. v. Cooper, 33 Pa. St., 278; People v. Draper, 15 N. Y., 532; Baltimore v. State, 15 Md., 376.

2 Freeport v. Marks, 59 Pa. St., 259; Buell v. Ball, 20 Ia., 282. Long v. Com'rs of Richmond, 76 N. C., 273.

owner, by making out his necessity to the satisfaction of a proper public officer, or of a jury, and by paying such damages as shall be assessed against him. This is an extension of the law of eminent domain,' but it has its foundation in public policy, and the appropriation is supposed to accomplish a public purpose in bringing into use a parcel of real property which otherwise would be or might be practically inaccessible. A proposition to make such a private way at the public expense by means of an exercise of the power of taxation would, by general consent, be pronounced wholly inadmissible, as being a proposition to appropriate the public revenues to a private purpose. The difference in the two cases is felt and appreciated the moment they are stated, and the wisdom of recognizing it in legislation has also been very generally felt. So there are some cases in which, without the aid of constitutional provisions, it has been held that individual property may be appropriated under the law of eminent domain, in order to enable private parties to establish and carry on their business enterprises, notwithstanding it would be incompetent to aid the same enterprises by payments from the public treasury. An illustration is the case of lands appropriated for the purpose of creating a reservoir for water, by means of which a water power may be made available in private hands for manufacturing purposes. The right to make the appropriation has been sustained, on the ground that, within the meaning of the law of eminent domain, land is taken for the public use whenever its taking is for the general public advantage, and that the establishment of power for manufacturing purposes is an object of such great public interest - especially where manufacturing is one of the great industrial pursuits of the commonwealth as fully to justify the declaring it a public use and to authorize for the purpose the appropriation of private property by individuals or corporations.2

1 In a few cases it has been held that private roads might be laid out by compulsory proceedings without any such constitutional permission. Harvey v. Thomas, 10 Watts, 63; Case of Pocopson Road, 16 Pa. St., 15; Sherman v. Buick, 32 Cal., 241.

2 Hazen v. Essex Company, 12 Cush., 475, 477, per Shaw, Ch. J.; Great Falls Manuf. Co. v. Fernald, 47 N. H., 444, 458, per Perley, Ch. J. The following cases are to the same effect: Fiske v. Framingham Manuf. Co., 12 Pick., Boston & Roxbury Mill Corporation v. Newman, 12 Pick., 467: Harding

67;

On the other hand, the right to exercise the power of taxation in aid of the manufacturing enterprises of private persons or corporations has seldom been asserted, and whenever asserted has been most emphatically denied. It has been well and forcibly said that: "Individuals and corporations embark in manufactures for the purpose of personal and corporate gain. Their purposes and objects are precisely the same as those of the farmer, the mechanic or the day laborer. They engage in the selected branch of manufactures for the purpose and with the hope and expectation not of loss but of profit. The general benefit to the community resulting from every description of well directed labor is of the same character, whatever may be the branch of industry upon which it may be expended. All useful laborers, no matter what the field of labor, serve the state by increasing the aggregate of its products- its wealth. There is nothing of a public nature any more entitling the manufacturer to public gifts, than the sailor, the mechanic, the lumberman or the farmer. Our government is based upon equality of rights. All honest employments are honorable. The state cannot rightfully discriminate among occupations, for a discrimination in favor of one branch of industry is a discrimination adverse to all other branches. The state is equally to protect all, giving no undue advantage or special or exclusive preference to any."

v. Goodlett, 3 Yerg., 41. The courts of Wisconsin have sustained such laws. Newcomb v. Smith, 1 Chand., 71; Thein v. Vogtlander, 3 Wis., 461, 465; Pratt v. Brown, 3 Wis., 603. But with some hesitation of late. See Fisher v. Horicon Co., 10 Wis., 351; Curtis v. Whipple, 24 Wis., 350; note of Judge Redfield to Allen v. Inhabitants of Jay, 12 Am. Law Reg., 493; S. C., 60 Me., 124; also 11 Am. Rep., 185. They have also been sustained in other states: Olmstead v. Camp, 33 Conn., 532; Jordan v. Woodward, 40 Me., 317; Miller v. Troost, 14 Minn., 365; Venard v. Cross, 8 Kan., 248; Harding v. Funk, 8 Kan., 315; Burgess v. Clark, 13 Ired., 109; M'Afee's Heirs v. Kennedy, 1 Lit., 92; Smith v. Connelly, 1 T. B. Monr., 58; Shackelford v. Coffey, 4 J. J. Marsh., 40; Crenshaw v. Slate River Co., 6 Rand., 245; Ash v. Cummings, 50 N. H., 591; Hankins v. Lawrence, 8 Blackf., 266; Gammel v. Potter, 6 Ia., 548. And in the federal supreme court. Head v. Amoskeag Manuf. Co., 113 U. S., 9, where all the cases are collected.

Compare Tyler v. Beacher, 44 Vt., 648; S. C., 8 Am. Rep., 398; Ryerson v. Brown, 35 Mich., 333; S. C., 24 Am. Rep., 564; Loughbridge v. Harris, 42 Ga., 500.

1 Opinions of Justices, 58 Me., 590, 592. This subject is considered a little further on.

Of like import is the opinion of an eminent federal judge, in a case in which a town, under an authority which the legis lature had attempted to confer, had voted its bonds in aid of a private manufacture.' The same doctrine was afterwards affirmed in the federal supreme court. After consideration of the general nature of the power to tax, the court declare it to be "beyond cavil that there can be no lawful tax which is not laid for a public purpose. It may not be easy to draw the line in all cases so as to decide what is a public purpose in this sense, and what is not. It is undoubtedly the duty of the legislature which imposes or authorizes municipalities to impose a tax, to see that it is not to be used for purposes of a private interest instead of a public use; and the courts can only be justified in interposing when a violation of this principle is clear and the reason for interference cogent. And in deciding whether, in a given case, the object for which the taxes are assessed falls upon the one side or the other of this line, they must be governed mainly by the course and usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, what objects or purposes have been considered necessary to the support and for the proper use of the government, whether state or municipal. Whatever lawfully pertains to this, and is sanctioned by time and the acquiescence of the people, may well be held to belong to the public use, and proper for the maintenance of good government; though this may not be the only criterion of rightful taxation.

"But in the case before us, in which the towns are authorized to contribute aid, by way of taxation, to any class of manufactures, there is no difficulty in holding that this is not

1 Commercial National Bank v. Iola, 2 Dill., 353. See National Bank of Cleveland v. Iola, 9 Kan., 689; Opinions of Justices, 58 Me., 590, 596; Parkersburg v. Brown, 106 U. S., 487; English v. People, 96 Ill., 566; Weismer v. Douglas, 64 N. Y., 91; S. C., 21 Am. Rep., 586.

A neck of land between two rivers could most easily be protected from cattle by a fence from river to river. A company was incorporated to build and maintain such a fence and impose fines and penalties and levy a specific tax to insure success. Held, that a land owner who refused to pay an assessment could not be compelled to do so; the undertaking not being one for which taxes could be authorized. Scuffletown Fence Co. v. McAllister, 12 Bush, 312.