In re Opinion of Justices

• Decision Date: 23 January 1871
• Citation: 58 Me. 590
• Parties: In re Opinion of the Justices
• Court: Maine Supreme Court

58 Me. 590

In re Opinion of the Justices

Supreme Judicial Court of Maine.

January 23, 1871

STATE OF MAINE.

HOUSE OF REPRESENTATIVES,

)

Jan. 23, 1871 )

Ordered, That the justices of the supreme judicial court be requested to furnish the house with their opinions upon the following questions:

Has the legislature authority under the constitution to pass laws enabling towns, by gifts of money or loans of bonds, to assist individuals or corporations to establish or carry on manufacturing of various kinds, within or without the limits of said towns? And if towns thus authorized may assist private parties, may they go further and establish manufactories entirely on their own account, and run them by the ordinary town officers or otherwise?

BANGOR Feb. 10, 1871.

To the House of Representatives of the State of Maine:

To the questions proposed by the legislature, we have the honor to answer as follows:

1. " Has the legislature authority under the constitution to pass laws enabling towns, by gifts of money … to assist individuals or corporations to establish or carry on manufacturing of various kinds, within or without the limits of said towns?"

As the proposed gifts can only be raised by taxation, the question really is, can the legislature constitutionally authorize towns to assess taxes upon their inhabitants and collect the same, for the purpose of giving the proceeds to some favored manufacturer or manufacturing corporation. And as some of the inhabitants may be indisposed to such generosity, the inquiry will arise, whether the legislature can authorize the majority by vote to give away the estates of the minority or any portions thereof, not merely without but against their consent?

Taxation by the very meaning of the word, is for public purposes, and for those the right of the government to impose taxes is unlimited. Taxes are the enforced proportional contribution of each citizen and of his estate, levied by the authority of the State for the support of government and for all public needs. They are the property of the citizen, taken from the citizen by the government, and they are to be disposed of by it. The necessities of government are more or less extensive according to the greater or lesser extent of governmental interference. Taxation originates from and is imposed by the State. The proceeds are for the government to enable it to carry into effect its mandates and to discharge its manifold functions.

The line of demarcation may not always be clear and distinct, and well defined between what is for public and governmental, and what for private purposes,-- between the general legislation for the whole people and the special for the individual. But the questions proposed leave no doubt as to the special phase of legislation to which they refer. They are obviously limited by and embrace what is special and private, excluding by their very terms whatever may or can by the most enlarged and liberal construction be regarded as relating to municipal, governmental, or public objects of any description whatsoever.

Individuals and corporations embark in manufactures for the purposes 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. By the very assumption of the interrogatory, they are engaged in private and corporate undertakings for private and corporate emolument. All municipal, police, educational, public, or governmental purpose, whether of peace or of war, is excluded from our consideration by the manifest purport of the inquiry.

Capital naturally gravitates to the best investment. If a particular place or a special kind of manufacture promises large returns, the capitalist will be little likely to hesitate in selecting the place and in determining upon the manufacture. But whatever is done, whether by the individual or the corporation, it is done with the same hope and expectation with which the farmer plows his fields and sows his grain,--the anticipated returns.

Now the individual or corporate manufacturing will in the outset promise to be, and in the result will be, either a judicious and gainful undertaking, or an injudicious and losing one. If the manufacturing be gainful, there seems to be no public purpose to be accomplished by assessing a tax on reluctant citizens and coercing its collection to swell the gains of successful enterprise. If the business be a losing one, it is not readily perceived what public or governmental purpose is attained by taxing those who would have received no share of the profits, to pay for the loss of an unprosperous manufacturer, whether arising from folly, incapacity, or other cause. The tax-payer should not be compelled to pay for the loss when he is denied a share of the profit.

It is true the inquiry is, whether the legislature can authorize a town by a major or any vote to give away the property of an unwilling minority to an individual or manufacturing corporation whom or which such majority may select as donees. The question relates only to manufactures; but if the right of confiscating the private property of individuals for the purpose of giving it away to one branch of industry can be conferred upon towns, one does not easily see when or what bounds can be imposed or limitations made.

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 is 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 advantages or special and exclusive preferences to any.

The constitution provides that " private property shall not be taken for public uses without just compensation, nor unless the public exigencies require it." But here the question is, whether private property can be taken for private purposes without just or any compensation. No public exigency can require private spoliation for the private benefits of favored individuals. If the citizen is protected in his property by the constitution against the public, much more is he against private rapacity. If the public cannot take private property against the consent of the owner without just compensation, and only when it is required by some public exigency, most assuredly private property cannot be taken for private purposes without just or any compensation, and when it is not needed to meet any public exigency.

If it were proposed to pass an act enabling the inhabitants of the several towns by vote to transfer the farms or the horses or oxen, or a part thereof, from the rightful owner or owners to some manufacturer whom the majority might select, the monstrousness of such proposed legislation would be transparent. But the mode by which property would be taken from one or many and given to another or others can make no difference in the underlying principle. It is the taking that constitutes the wrong, no matter how taken. Whether the cow or ox be taken from the unwilling owner and given to a manufacturer, or the gift be of the money obtained by a sale made by the collector, or by the payment of the tax to avoid such sale, does not and cannot change the principle. In either case the cow or the ox, or the value thereof, is taken from the owner, and is given away by others without the owner's consent. If a part of one's estate may be given away, another and another portion may upon the same principle be given away, until all is gone. What is this but manifest and undisguised spoliation?

The farmer and the mechanic may as well be donees as the manufacturer, and they alike equally labor for the general benefit in laboring for themselves. If a tax were to be assessed upon estates to be redistributed per capita, it would be plain spoliation. Is it any better, any the less spoliation because the gift is to one man or to one corporation rather than to all the inhabitants?

The legislature by the constitution are empowered " to make and establish all reasonable laws and regulations for the defense and benefit of the people of this State, not repugnant to this constitution, nor to that of the United States."

By the declaration of rights, " all men … have certain natural, inherent, and unalienable rights, among which are those of acquiring, possessing, and protecting property," etc. But what inducement is there to acquire property, if the tenure of the acquisition is the will of others? How can one possess and protect property if the legislature can enable a majority to transfer by gift, through the medium of direct taxation for that end, such portions or the whole of one's estate as it may deem expedient? Such a law may be for the benefit of the donee, but it cannot be for that of the people. Grant this power to the legislature and let it be exercised, and all security for property is at an end. The motive to acquire is destroyed. The enjoyment of possession is taken away. The power to protect is gone.

The constitution provides, that no person shall " be deprived of his life, liberty, property, or privileges, but by...