in re Municipal Fuel Plants
| Decision Date | 28 January 1903 |
| Citation | 182 Mass. 605,66 N.E. 25 |
| Parties | In re MUNICIPAL FUEL PLANTS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Application to the supreme judicial court for an opinion on the constitutionality of house bill No. 511 relating to the establishment of municipal fuel plants. To the Honorable the House of Representatives of the Commonwealth of Massachusetts:
In reply to your order of January 14, 1903, a copy of which is annexed, the justices of the supreme judicial court respectfully give the following opinion:
The first three questions submitted to us are substantially the same as the three submitted to the justices on April 12 1892, the answer to which appear in 155 Mass. 601, 39 N.E 1142, 15 L. R. A. 809. We adopt and reaffirm the doctrines stated in the first of the opinions then submitted to the house of representatives. A separate opinion, then submitted by another of the justices, rests upon the same principles as the first. We do not deem it necessary to restate the reasons and arguments which have led legislatures and courts to nearly, if not quite, uniform conclusions in regard to the attitude which the government should maintain, under existing constitutions, towards the transaction of common kinds of business which can be conducted successfully by individuals without the use of any governmental function. These can be found in numerous published opinions of the courts, some of which are cited in the opinion first above mentioned.
It is established that under our constitution private property cannot be taken from its owner except for a public use. This is equally true whether the property is a dwelling house, taken by right of eminent domain, or money demanded by the tax collector. The establishment of a business like the buying and selling of fuel requires the expenditure of money. If this is done by an agency of the government, there is no way to obtain the money except by taxation. Money cannot be raised by taxation except for a public use. Until within a few years, it generally has been conceded, not only that it would not be a public use of money for the government to expend it in the establishment of stores and shops for the purpose of carrying on a business of manufacturing or selling goods in competition with individuals, but also that it would be a perversion of the function of government for the state to enter as a competitor into the field of industrial enterprise with a view either to the profit that could be made through the income to be derived from the business or to the indirect gain that might result to purchasers if prices were reduced by governmental competition. There may be some now who believe it would be well if business was conducted by the people collectively, living as a community, and represented by the government in the management of ordinary industrial affairs. But nobody contends that such a system is possible under our constitution. It is plain, however, that taxation of the people to establish a city or town in the proprietorship of an ordinary mercantile or manufacturing business would be a long step towards it. If men of property, owning coal and wood yards, should be compelled to pay taxes for the establishment of a rival coal yard by a city or town, to furnish fuel at cost, they would thus be forced to make contributions of money for their own impoverishment; for, if the coal yard of the city or town was conducted economically, they would be driven out of business. A similar result would follow if the business of furnishing provisions and clothing, and other necessaries of life, were taken up by the government; and men who now earn a livelihood as proprietors would be forced to work as employés in stores and shops conducted by the public authorities. Except for the severely onerous conditions from which we are now suffering, the causes of which arose outside of this state, beyond the reach of our legislative enactments, there is nothing materially different between the proposed establishment of a governmental agency for the sale of fuel and the establishment of a like agency for the sale of other articles of daily use. The business of selling fuel can be conducted easily by individuals in competition. It does not require the exercise of any governmental function, as does the distribution of water, gas, and electricity, which involves the use of the public streets and the exercise of the right of eminent domain. It is not important that it should be conducted as a single large enterprise, with supplies emanating from a single source, as is required for the economical management of the kinds of business last mentioned. It does not even call for the investment of a large capital, but it can be conducted profitably by a single individual of ordinary means. We therefore have no hesitation in answering the first three questions in the negative.
The fourth question presents greater difficulties. Evidently it is suggested by the painful experiences in attempting to procure fuel, from which we have lately been suffering. The questions are accompanied by copies of bills and resolves pending before the general court, one of which is entitled 'An act to authorize cities and towns to buy and sell fuel in certain emergencies.' This question must be interpreted in reference to the conditions to which it refers and in reference to the remedy which it suggests. The only proposed remedy to which it relates is the establishment by a city or town of fuel or coal yards, or the purchase of coal wood, or other fuel for the purpose of selling it to the inhabitants of the city or town, or to others. The only condition referred to in the question is 'an extraordinary emergency,' and the conditions referred to in the accompanying bill are 'a scarcity of fuel, and a...
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