Moral obligations. There are some cases in which taxation has been allowed for the benefit of private persons on considerations not of charity so much as of justice. Any exercise of the powers of government is liable to cause injury to particular individuals. When the injury is merely incidental, is made to the recent case of Lowell v. Boston, 111 Mass., 454, as follows: "The foregoing opinion and the still more recent decision of the supreme judicial court of Massachusetts, in the case of Lowell v. The City of Boston, seem to justify the expectation that some limits will hereafter be placed to the power of interested parties through the legislature to carry forward private enterprises by means of taxation. The case of Boston grew out of an act of the legislature, at a special session called largely for that purpose, by which the city was authorized 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 avails of these bonds to be loaned to the owners of land upon which buildings were destroyed by the great fire of November last. Commissioners were appointed to manage the loan, and were required to take a first mortgage upon the land at not less than three-fourths its value, as security for the money advanced, at seven per cent. interest. Here there was a case where there could be no reasonable danger of loss, and a high probability of some gain to the city by means of the larger rate of interest paid by the borrowers than that paid by the city. There could be no fair question either that such a proceeding would afford great accommodation to the property owners on the burnt district, and that it would greatly conduce to the speedy restoration of that portion of the city, and thus naturally to the increase of the wealth and business prosperity of the city, and, to some extent, to the greater convenience, accommodation and prosperity of the inhabitants of the city generally. And still the court, unanimously, so far as we learn, came to the conclusion that the statute was void, and perpetually enjoined all proceedings under it." A town cannot raise money by tax to distribute among its citizens according to numbers. Hooper v. Emery, 14 Me., 375, 379. Towns cannot raise moneys for the purpose of abating a particular class of taxes-e. g., poll taxes upon its male inhabitants and consequently cannot appropriate public moneys for that purpose. Cooley v. Granville, 10 Cush., 56. That it is not competent to tax for the support of a woolen mill in private hands, and that if the tax is laid and the money collected the officers have no right to pay it over, see McConnell v. Hamm, 16 Kan., 228. That taxation in support of a grist mill is void, and the payment of bonds issued for the purpose will be enjoined, see Central Branch U. P. R. Co. v. Smith, 23 Kan., 745. Also Commercial Nat. Bank v. Iola, 2 Dill., 353; National Bank v. Iola, 9 Kan., 689; Loan Association v. Topeka, 20 Wall., 655. In Burlington v. Beasley, 94 U. S., 310, taxation in aid of a public grist mill, the tolls of which the legislature would have a right to regulate, was sustained. It is of course conceivable that in a new country such a mill may not only be a public necessity, but impossible of establishment without public aid. these individuals have no legal claim to indemnification. Nevertheless, it seems eminently proper and just, in some exceptional cases, to recognize a moral obligation resting on the public to share with the persons injured the damage sustained; and this can only be done by means of taxation. All governments are accustomed to recognize and pay equitable claims of this nature under some circumstances; claims, for instance, for the destruction of private property in war, and sometimes for incidental injuries occasioned by the construction of a public work, or for loss in performing a contract to construct it.1 In these cases the legislature is not confined in making compensation within the strict limits of common law remedies, but it may recognize moral or equitable obligations, such as a just man would be likely to recognize in his own affairs, whether by law required to do so or not. And what the legislature may do for the state, the municipalities, under proper legislation, may do for themselves. Thus where their officers have been subjected to responsibility and loss in an honest attempt to perform public duty, they may very justly as well as legally be indemnified by the municipality for which they were acting.? And it has several times been held that what the municipality might thus voluntarily do, the legislature might require it to do.' It may, therefore, compel a city to issue bonds for a merely equitable demand,' or to lay a tax for its satisfaction." Amusements and celebrations. To furnish amusements to its citizens is not one of the functions of government. But to 1 New Orleans v. Clark, 95 U. S., 644; Lycoming v. Union, 15 Pa. St., 166; Friend v. Gilbert, 108 Mass., 408; Guilford v. Supervisors of Chenango, 13 N. Y., 143. 2 Nelson v. Milford, 7 Pick., 18, 23; Hadsell v. Hancock, 3 Gray, 526; Fuller v. Groton, 11 Gray, 340; Baker v. Windham, 13 Me., 74; Pike v. Middleton, 12 N. H., 278; Briggs v. Whipple, 6 Vt., 95; Sherman v. Carr, 8 R. I., 431; Bancroft v. Lynnfield, 18 Pick., 566, 568. Whether this could be done in Michigan, see Bristol v. Johnson, 34 Mich., 123. 3 Guilford v. Supervisors of Chenango, 13 N. Y., 143; Brewster v. Syracuse, 19 N. Y., 116; New Orleans v. Clark, 95 J. S., 644; Board of Education v. McLandsborough, 36 Ohio St., 227; Wilkinson v. Cheatham, 43 Ga., 258; Beals v. Amador, 35 Cal., 624; Blanding v. Burr, 13 Cal., 343. 4 Blandig v. Burr, 13 Cal., 343. 5 See Thomas v. Leland, 24 Wend., 65; New Orleans v. Clark, 95 U. S., provide public parks or other grounds which shall be open to the public use and occupation for healthful recreation and enjoyment is not only proper but highly commendable, and in large towns may almost be said to be absolutely necessary.1 The great public parks of the world are great public blessings, in which the poor participate with the rich, and from which they, perhaps, derive the larger share of positive benefit. How far a state or a town should go in making these attractive, the legislative wisdom must provide, and it will be likely to err but seldom in the direction of liberality so long as careful pro• vision is made for an honest expenditure of public funds.2 Government sometimes provides for the celebration of important events or eras. Cities or towns have no authority to do this, at least without express legislative permission. Such are the decisions in cases where public money has been voted to celebrate the declaration of independence, or the closing military success in the revolutionary war. It is not very clear 1 See Matter of Central Park, 50 N. Y., 493; Matter of Prospect Park, 60 N. Y., 398; State v. Leffingwell, 54 Mo., 458; People v. Salomon, 51 Ill., 37; People v. Brislin, 80 Ill., 423; Dunham v. People, 96 Ill., 331. In AttorneyGeneral v. Burrell, 31 Mich., 25, a town was held to have authority under its general powers to purchase and hold land for town purposes, to buy and hold a public square. 2"It is difficult to name a limit beyond which taxes will not be borne without impatience, when they appear to be called for by necessity and faithfully applied. But the sting of taxation is wastefulness." Hallam's Middle Ages, ch. 1, pt. 2. Hodges v. Buffalo, 2 Denio, 110; Tash v. Adams, 10 Cush., 252; New London v. Brainard, 22 Conn., 552; Gerry v. Stoneham, 1 Allen, 319; Hood v. Lynn, 1 Allen, 103, 107; Dillon's Mun. Corp., § 110. In the case last cited, the following remarks are made by Bigelow, Ch. J., regarding the force of usage in the construction of town powers: "It was urged by the counsel for the respondents, that the appropriation in the present case might be justified and sustained on the ground of usage. But the answer to this argument is twofold. In the first place, there is no evidence in the case of the existence of any such usage or custom in the towns or cities of this commonwealth. It is not even alleged in the answer of the respondents. Certainly, the court cannot take judicial cognizance of it. But even if such usage was alleged and proved, it would not alter the case. An unlawful expenditure of the money of a town cannot be rendered valid by usage, however long continued. Abuses of power and violations of rights derive no sanction from time or custom. A casual or occasional exercise of the power by one or a few towns will not constitute a usage. It must not only be general, reasonable and of long continuance, but what is that the power could be conferred upon them if the legislature were disposed to do so. Highways and roads. One of the most important functions of government is the making provision for public roads for the use of the people. The variety of these is great, and the modes of construction and operation are different. No question is made of the competency of the legislature to levy taxes for the common highway, the improved turnpike and macadamized road, the planked or paved street, the canal, the tramway or the railway. Any or all of them may be constructed by the state, or under state authority, by the municipal subdivisions of the state within whose limits they may be needed.' more important, it must also be a custom necessary to the exercise of some corporate power, or the enjoyment of some corporate right, or which contributes essentially to the necessities and conveniences of the inhabitants. The usage relied on in the present case, if established, would not satisfy either of these last named requisites, which are necessary to give it validity. It is said by this court, in a recent case, that there are many things in the management of town affairs, which are done without objection and pass by general consent, which cannot, when objection is made and they are brought to the test of judicial investigation, be supported as strictly legal. Sikes v. Hatfield, 13 Gray, 353. The present case is an illustration of the truth of this remark.” 1 In Philadelphia v. Field, 58 Pa. St., 320, it was held competent for the legislature to provide for the construction of a free bridge over the Schuyl kill, opposite one of the streets of Philadelphia, and to require the expense to be borne by taxation of the city. The cases of Thomas v. Leland, 24 Wend., 65; Norwich v. County Commissioners, 13 Pick., 60; Hingham, etc., Corporation v. Norfolk County, 6 Allen, 353, and Board of Wardens v. Philadelphia, 42 Pa. St., 209, were cited with approval. Some of these will be referred to hereafter. The levy of a tax by the county commissioners to purchase a toll road, and make it free, is a proper public purpose. Warden v. Commissioners, 38 Ohio St., 639. It is a tax and not an assessment when the cost of building a bridge is laid upon the property of a city and of a town connected by the bridge. People v. Whyler, 41 Cal., 351; Smith v. Farrelly, 52 Cal., 77. It has been held that where a city, under competent legislation, improves its own streets, a county tax for roads cannot be laid upon its inhabitants. Martin v. Aston, 60 Cal., 63. But it is doubted that this is universally true. For a somewhat peculiar case involving the construction of a statute for taxing to make a county road, see King v. Aroostook Co., 63 Me., 567. The state may, by general law or otherwise, require a county to share with a town in the cost of an expensive bridge or road, though in general the towns bear the whole cost of such works. Supervisors of Will Co. v. People, 110 Ill., 511. They may be supported and kept in repair by taxation of the state or of proper districts, or private corporations may be invested with the franchise of constructing them, and taking tolls for their use. Upon these points, also, no question arises. The differences of opinion which are met with, regarding taxation for public conveniences of this nature, have principally arisen in those cases in which the legislature has permitted or required the municipal corporations or subdivisions of the state to become stockholders in private corporations organized for the purpose of constructing them, or to make loans or donations to such corporations in order to assist them in their enterprises. On the one hand, it has been insisted that the state cannot subject itself and its property, as a corporator, to the risks of a business conducted and managed in part, perhaps mainly, by individuals for their own benefit; and that if it can do so in one business, because of benefits that may flow to the public in consequence of their being supplied with convenient facilities for travel and transportation, there is no reason in the nature of things why it may not do so in any other case where benefits to the public might reasonably be anticipated in consequence of their being furnished any other valuable conveniences or facilities. The public, it has also been claimed, could not be taxed in aid of such private corporations, because the benefits anticipated from them would be purely incidental, not differing in their nature from those which might flow from the establishment of a mill for the manufacture of breadstuffs, or from any other manufactory of a useful kind, or from any useful and necessary private business; and, consequently, could not, on the principles already stated and universally recognized as sound, constitute any basis for taxation. On the other hand, the argument has been, that corporations for the construction of turnpikes, canals, railroads, etc., have a duplicate nature, and are both public and private; that the taking of property for them is universally recognized as being for a public use; that the ways they construct or propose to construct are quasi public highways on which the public at large are entitled to equal and impartial accommodations, and that for all these reasons there is a public interest in their construction which constitutes them public purposes within the meaning of the law of taxation, and renders the question of public assist |