town; 20 also that a tax on a foreign insurance company for the benefit of disabled firemen was void.21

On the same principle the proposed issuance of $20,000,000 worth of bonds by the city of Boston to raise money to loan to lot owners for the purpose of rebuilding in the burnt district in the city after the great fire of 1872 was declared to be null and void. 22 The same ruling had been previously made upon a similar act of the legislature of South Carolina in regard to the city of Charleston after the fire of 1866.23 And an act providing for a tax to defray the expenses incurred in defending unsuccessful prosecutions against city officers for official misconduct was held invalid, as being an attempted exercise of the police power for a private purpose.2 And so an act providing for the appropriation of a sum for the treatment of habitual drunkards in private institutions at the expense of the county was held unconstitutional, as being the imposition of a tax for private purposes.25

24

20 City of Parkersburg v. Brown, 106 U. S. 487, 1 Sup. Ct. 442, 27 L. Ed. 238; Osborne v. Adams County, 109 U. S. 1, 3 Sup. Ct. 150, 27 L. Ed. 835; Cole v. La Grange, 113 U. S. 1, 5 Sup. Ct. 416, 28 L. Ed. 896; Allen v. Jay, 60 Me. 124; 11 Am. Rep. 185; Coates v. Campbell, 37 Minn. 498, 35 N. W. 366; Mather v. Ottawa, 114 Ill. 659, 3 N. E. 216; Attorney General v. Eau Claire, 37 Wis. 400.

21 Philadelphia Ass'n for Relief of Disabled Firemen v. Wood, 39 Pa. 73.

But an act requiring insurance companies to pay an annual fee to the fire department of Montgomery to enable it to reward superior skill and exertion in its members and provide for sick or disabled members or their families was held not unconstitutional as imposing a tax for private purposes, even though the fire department be the direct recipient of it. Phoenix Assur. Co. v. Fire Dept., 117 Ala. 631, 23 South. 843, 42 L. R. A. 468.

22 LOWELL v. BOSTON, 111 Mass. 463, 15 Am. Rep. 39.

23 Feldman v. Charleston, 23 S. C. 57, 55 Am. Rep. 6.

24 In re Jensen, 44 App. Div. 509, 60 N. Y. Supp. 933.

25 State v. Froehlich, 118 Wis. 129, 94 N. W. 50, 61 L. R. A. 345.

WHAT ARE PUBLIC PURPOSES.

163. A general concurrence of judicial opinion includes among public purposes of municipalities

1. The administration of justice.

2. The preservation of peace and order.

3. The protection of property.

4. The facilitation of locomotion and transportation.

5. The preservation of the public health.

6. The support of public education.

7. The promotion of public comfort.

8. The care of the helpless.

9. The reward of civic fidelity and heroism.

The question of what is a public and what a private purpose has been repeatedly before the supreme courts of the various states in divers forms, and there is apparent inconsistency in the decisions. This has resulted in some states from failure of the Constitution to forbid the legislature authorizing municipalities to loan credit to and exempt from taxation industrial enterprises of various kinds. But where there is express constitutional provision declaring and enforcing the rule of uniform and equal taxation, public purposes only have been generally, if not universally, recognized and sustained as the basis of the power; and in declaring what are public purposes the courts have not been inclined to confine their vision to a narrow view, but have generally adopted and followed the opinion of Judge Black in the celebrated case of Sharpless v. City of Philadelphia.20

The substance of this decision is thus felicitously stated by an author of repute: 27 "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

26 21 Pa. 147, 59 Am. Dec. 759.

27 Burroughs, Tax'n, § 25.

want; for the police of the state, in regulations for the preservation of health or the detection of crime; for courts of law, that individual rights may be protected and enforced, and that crime, when detected, may receive its fitting punishment; for the preservation of peace and the protection of the country from foreign enemies; to aid, encourage, and stimulate commerce, domestic and foreign, by the establishment of mints, postal system, and maintaining navies to keep open the highway of nations; to encourage citizens in the defense of their country by suitable rewards and mementos for past services in times of war, or by bounties for enlistment for future services; and for the promotion of the arts and sciences. For all these matters taxes may be imposed. The purpose is public. The object is governmental. The money raised and property purchased is held by the agents of the state for the state. The object is so to regulate the state that all its citizens may enjoy their lives, liberty, and property, and pursue their happiness according to the dictates of their own reason."

In many cases taxation has been upheld which would result in private benefit because the purpose of the taxation was public, and in others taxation which would confer public benefit has been annulled because the obvious purpose of the levy was private. The rule governing the courts in all these cases seems to be that incidental benefits are not to decide the fate of a tax levy, but the obvious purpose of the taxation is to form the basis of the decision.2 28

28 Allen v. Jay, 60 Me. 124, 11 Am. Rep. 185; Weeks v. Milwaukee, 10 Wis. 242; Citizens' Savings & Loan Ass'n v. Topeka, 20 Wall. (U. S.) 655, 22 L. Ed. 455; Booth v. Woodbury, 32 Conn. 118; Mills v. Charleton, 29 Wis. 411, 9 Am. Rep. 578. Tax for construction of subway held valid, PRINCE v. CROCKER, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610; support of poor, Louisville & N. R. Co. v. Pendleton County, 96 Ky. 491, 29 S. W. 324; Elizabeth Water Co. v. Wade, 59 N. J. Law, 78, 35 Atl. 4; Maydwell v. Louisville, 25 Ky. Law Rep. 1062, 76 S. W. 1091, 63 L. R. A. 655.

A tax imposed for the purpose of aiding an exposition was held constitutional, as being for the promotion of the public welfare. State v. Cornell, 53 Neb. 556, 74 N. W. 59, 39 L. R. A. 513, 68 Am.

APPORTIONMENT OF TAXES.

164. The apportionment of the levy is an essential feature in the sovereign attribute of taxation, and may be exer

cised by the municipality as well as by the state.

Taxation is a burden to be borne for benefits conferred.29 The general benefit accruing to citizens from good government calls for contributions from all in proportion to their ability to pay. This is usually determined by the value of their property which receives the protection of government. Special benefits, however, conferred by the state upon particular localities at extraordinary expense, ought not to be paid for by all the citizens of the state, but the expense thereof should in justice fall upon those who receive the benefits.30 Municipalities, therefore, which receive special grants of power, enabling them to obtain particular advantages over the unincorporated portions of the state, are properly taxed with the extraordinary expense of conferring these benefits.31

St. Rep. 629. But see Hayes v. Douglas County, 92 Wis. 429, 65 N. W. 482, 51 L. R. A. 213, 53 Am. St. Rep. 926.

In Missouri, an act imposed a collateral succession tax to create a fund for maintaining free scholarships in the university, distributed throughout the state on competitive examination to applicants without means. It was held to be for purely private purposes, and void. State ex rel. Garth v. Switzler, 143 Mo. 287, 45 S. W. 245, 40 L. R. A. 280, 65 Am. St. Rep. 653; Same v. Rassieur, Id. And so an act providing that the manufacturers of patent medicine should pay a license, which should be turned into a fund for maintaining free scholarships in the State University for students. C. F. Simmons Medicine Co. v. Ziegenhein, 145 Mo. 368, 47 S. W. 10.

29 Montesquieu, Spirit of Laws, b. 12, c. 30; Marshall, C. J.. in Providence Bank v. Billings, 4 Pet. (U. S.) 561, 7 L. Ed. 939; Mills, Pol. Econ. 370-372; 2 Bouv. Law Dict. tit. "Taxes."

30 Ruggles, J., in People v. Brooklyn, 4 N. Y. 419, 428, 55 Am. Dec. 266; City of Bridgeport v. Railroad Co., 36 Conn. 255, 4 Am. Rep. 63; Dorgan v. Boston, 12 Allen (Mass.) 223; Hammett v. Philadel phia, 65 Pa. 148, 3 Am. Rep. 615; Neenan v. Smith, 50 Mo. 525.

31 Gordon v. Cornes, 47 N. Y. 608; City of Philadelphia v. Field,

Taxation and Apportionment Inseparable.

The power of taxing and the power of apportioning taxation are inseparable; the former, indeed, includes the latter, and the state may either itself make the apportionment of extraordinary expense for local benefit, or it may confer the power upon the public corporation of the locality.32 The latter method is commonly pursued, and thus municipalities are authorized to decide in what measure they will exercise the powers conferred upon them, and what amount of expense within legislative limits they will incur therefor.33 All general improvements in a municipality are paid for out of the municipal treasury; but in the municipality, just as in the state, inequalities of benefit in the improvements of divers localities call for unequal burdens of taxation. Those who receive special benefits in a municipality are therefore liable to special burdens of taxation, and the same power of apportionment existing in the state government is likewise recognized in municipal government.35

58 Pa. 320; Shaw v. Dennis, 5 Gilman (Ill.) 405; Thomas v. Leland, 24 Wend. (N. Y.) 65; Brewster v. Syracuse, 19 N. Y. 116.

32 HOPE v. DEADERICK, 8 Humph. (Tenn.) 1, 47 Am. Dec. 597; Speer v. Athens, 85 Ga. 49, 11 S. E. 802, 9 L. R. A. 402; PEOPLE v. HURLBUT, 24 Mich. 44, 9 Am. Rep. 103; Battle v. Mobile, 9 Ala. 234, 44 Am. Dec. 438; Harrison v. Vicksburg, 3 Smedes & M. (Miss.) 581, 41 Am. Dec. 633; Evansville v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93.

33 People v. Flagg, 46 N. Y. 401; Hammett v. Philadelphia, 65 Pa. 146, 3 Am. Rep. 615; Taylor v. Chandler, 9 Heisk. (Tenn.) 349, 24 Am. Rep. 308; City of Ottawa v. Spencer, 40 Ill. 211; Kansas City v. Baird, 98 Mo. 215, 11 S. W. 562.

34 Taylor v. Chandler, supra; Regenstein v. Atlanta, 98 Ga. 167, 25 S. E. 428.

35 Mobile County v. Kimball, 102 U. S. 691, 26 L. Ed. 238; Village of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443; Bauman v. Ross, 167 U. S. 548, 17 Sup. Ct. 966, 42 L. Ed. 270; In re Washington Ave., 69 Pa. 352, 8 Am. Rep. 255; Chamberlain v. Cleveland, 34 Ohio St. 551.

STANFORD LAW LIVIN