Opinion of the Justices

• Decision Date: 07 May 1892
• Parties: OPINION OF THE JUSTICES. In re HOUSE BILL NO. 519.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 598

30 N.E. 1142

OPINION OF THE JUSTICES. In re HOUSE BILL NO. 519.

Supreme Judicial Court of Massachusetts.

May 7, 1892

"House of Representatives, April 12, 1892.

"Ordered that the opinion of the justices of the supreme judicial court be required upon the following important questions:

"First. Is it within the constitutional power of the legislature to enact a law conferring upon a city or town within this commonwealth the power to purchase coal and wood as fuel in excess of its ordinary requirements, for the purpose of selling such excess, so purchased, to its own citizens?

"Second. Is it within the constitutional power of the legislature to enact a law conferring upon a city or town within this commonwealth the power to purchase for the purpose of sale, and to sell to its own citizens, coal and wood as fuel?

"Third. Is it within the constitutional power of the legislature to enact a law conferring upon cities and towns within this commonwealth authority to establish and maintain municipal fuel or coal yards for the purpose of selling coal, wood, or other fuel to the inhabitants of such cities and towns?

"And be it further ordered, that the justices of the supreme judicial court be informed that the foregoing questions are propounded with a view to further legislation upon the subjects therein referred to, and that for their more particular information a copy of house document No. 395, being a bill now pending before this house, and upon the subject-matter of which the foregoing questions are propounded, be transmitted to the justices."

"House of Representatives, April 12, 1892.

"Adopted. EDWARD A. MCLAUGHLIN, Clerk.

"A true copy. Attest: EDWARD A. MCLAUGHLIN."

"An act to enable cities and towns to purchase, sell, and distribute fuel.

"Section 1. Any city or town may, under the limitations of this act, construct, purchase, lease, or establish and maintain, within its limits, one or more fuel yards, for the purpose of supplying the municipality with coal, wood, or other fuel, and selling and distributing the same to such of its inhabitants as may purchase the said fuel. Such fuel yards may include suitable lands, structures, easements, water privileges, horses, carts, scales, and other apparatus and appliances necessary for the storage, sale, and distribution of coal, wood, and other articles of fuel.

"Sec. 2. No city shall exercise the authority conferred in section one until a vote that it is expedient to exercise such authority shall have passed each branch of its city council by a two-thirds vote, and received the approval of the mayor, and thereafter have been ratified by a majority of the voters present and voting thereon at an annual municipal election. When such a vote has failed to secure such ratification, no similar vote shall be submitted for ratification until after the expiration of five years thereafter.

"Sec. 3. No town shall exercise the authority conferred in section one until after a vote that it is expedient to exercise such authority shall have been passed by a vote of not less than two thirds of the voters present and voting at each of two legal town meetings duly called for the purpose, of which meetings the second shall be held at an interval of not less than two nor more than thirteen months after the first. At such meetings, such vote shall be taken by written or printed ballot and by the use of the check list. When such a vote has failed of passage, as hereinbefore provided, at the second of said meetings, no similar vote shall be passed until after the expiration of two years thereafter.

"Sec. 4. Any city or town establishing or purchasing a fuel yard within its limits, as provided in this act, or reconstructing, extending, or enlarging the same, as provided in section five, may pay for the same by the issue of bonds payable in a term not exceeding thirty years, and bearing interest at a rate not exceeding five per cent., which shall not be disposed of for less than par and accrued interest, and the indebtedness thereby created shall not be included in the limit of indebtedness of such city or town provided by law; but such bonds shall not be issued until a vote authorizing the same has been passed by the vote required by section seven of chapter twenty nine of the Public Statutes, and the whole amount of bonds so issued by a city or town, and outstanding, shall not exceed at their par value the amount of five per cent. of the total valuation of estates therein in the case of a town, or two and one half per cent. of such valuation in the case of a city, according to the last preceding state valuation. The interest on such bonds, and a sinking fund to meet the same at maturity, shall be provided for as required by section nine of said chapter twenty-nine. No indebtedness shall be incurred by any city or town, in connection with such fuel yard, except as aforesaid, and excepting, further, that money may be borrowed under the provisions of section six of said chapter twenty-nine, as amended, to pay the operating expenses thereof. All receipts from the sale of fuel shall be paid over to the treasurer of such city or town. The gross expenses of running and conducting such business of purchasing, selling, storing, and distributing fuel, including interest on such bonds and requirements of the sinking fund, as aforesaid, shall be included in the appropriations made annually or from time to time, by such city or town, and shall be paid out of the treasury thereof.

"Sec. 5. Any city or town owning a municipal fuel yard may reconstruct, extend, or enlarge the same; but no such reconstruction, extension, or enlargement, beyond the necessary and ordinary maintenance, repair, and replacement thereof, except such increased apparatus and appliances for the sale and distribution of fuel as may be necessary to furnish the same to new takers, shall be undertaken or made except by the vote provided by section four in the case of the issue of bonds.

"Sec. 6. When any city or town owns a municipal fuel yard the city council of said city, and the selectmen of the said town, may make such rules and regulations, not inconsistent with the provisions of this act, as may be deemed necessary for an honest, safe, and economic management of the business."

To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

OPINION

We, five of the justices of the supreme judicial court, respectfully submit the following opinion in reply to your order, a copy of which is annexed.

Whether the legislature can authorize a city or town to buy coal and wood, and to sell them to its inhabitants for fuel, must be determined by considering whether the carrying on of such a business for the benefit of the inhabitants can be regarded as a public service. This inquiry underlies all the questions on which our opinion is required. If such a business is to be carried on, it must be with money raised by taxation. It is settled that the legislature can authorize a city or town to tax its inhabitants only for public purposes. This is not only the law of this commonwealth, but of the states generally, and of the United States. The following are some of the decisions or opinions on the subject: Kingman v. City of Brockton, 153 Mass. 255, 26 N.E. 998; Opinion of the Justices, 150 Mass. 592, 24 N.E. 1084; Mead v. Acton, 139 Mass. 341, 1 N.E. 413; Lowell v. Boston, 111 Mass. 454; State v. Osawkee Tp., 14 Kan. 418; Mather v. City of Ottawa, 114 Ill. 659, 3 N.E. 216; Loan Ass'n v. Topeka, 20 Wall. 655; Cole v. La Grange, 113 U.S. 1, 5 Sup.Ct.Rep 416; Ottawa v. Carey, 108 U.S. 110, 2 S.Ct. 361; Attorney General v. Eau Claire, 37 Wis. 400; State v. Eau Claire, 40 Wis. 533; Allen v. Jay, 60 Me. 124; Opinion of the Judges, 58 Me. 590.

It is not easy to determine in every case whether a benefit conferred upon many individuals in a community can be called a "public service," within the meaning of the rule that taxes can be laid only for public purposes. In general however, it may be said that the promotion by taxation of the private interests of many individuals is not a public service, within the meaning of the constitution. The preamble of the constitution declares that "the end of the institution, maintenance, and administration of government is to secure the existence of the body politic; to protect it, and furnish the individuals who compose it with the power of enjoying in safety and tranquillity their natural rights, and the blessings of life." It is declared in part 1, art. 1, "that all men are born free and equal, and have certain natural, essential, and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness." Constitutional questions concerning the power of taxation, necessarily, are largely historical questions. The constitution must be interpreted, as any other instrument, with reference to the circumstances under which it was framed and adopted. It is not necessary to show that the men who framed it or adopted it had in mind everything which by construction may be found in it, but some regard must be had to the modes of thought and action on political subjects then prevailing; to the discussions upon the nature of the government to be established; to the...