Opinion of Justices

• Decision Date: 28 May 1890
• Citation: 150 Mass. 592,24 N.E. 1084
• Parties: OPINION OF THE JUSTICES. In re PUBLIC LIGHTING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 592

24 N.E. 1084

OPINION OF THE JUSTICES. In re PUBLIC LIGHTING.

Supreme Judicial Court of Massachusetts, Suffolk.

May 28, 1890

May 28 1890

OPINION

We received, on the 24th inst., your order of the 22d inst., a copy of which is annexed, and we respectfully submit the following opinion: In considering the questions asked, we assumed that the power to be conferred is not merely a power to receive and use property given in trust for the purposes named, but is a power to raise money by taxation, and by means of it to construct and maintain works for the manufacture and distribution of gas or electricity to be used by the municipalities for lighting the public streets and buildings, and by the inhabitants for lighting the land and buildings which are their private property. We also assume that the gas or electricity to be furnished to the inhabitants for their private use is to be paid for by them at rates to be established, which shall be deemed sufficient to reimburse to the cities and towns the reasonable cost of what is furnished, and that all the inhabitants of a city or town are to have the same, or similar, rights to be supplied with gas or electricity, so far as is reasonably practicable, and the capacity and extent of the works which it is deemed expedient to maintain will permit. Whether cities and towns can be authorized to give gas and electricity to their inhabitants, or to sell either to them at varying and disproportionate prices, selecting their customers, selling to some and arbitrarily refusing to sell to others, are questions which it is not necessary to consider. By the constitution full power and authority are given to the general court to make "all manner of wholesome and reasonable orders, laws, statutes, and ordinances" not repugnant to the constitution, which "they shall judge to be for the good and welfare of this commonwealth," etc., and "to impose and levy proportional and reasonable assessments, rates, and taxes upon all the inhabitants of and persons resident, and the estates lying within the said commonwealth," "for the public service, in the necessary defense and support of the government of the said commonwealth, and the protection and preservation of the subjects thereof," etc. Part 2, c. 1, art. 4, § 1. The extent of the right of taxation is not necessarily to be measured by that of the right of eminent domain, but the rights are analogous. Private property can be taken without the consent of the owner only for public uses, and the owner must be paid full compensation therefor; otherwise he would contribute more than his proportionate share towards the public expenses. By taxation the inhabitants are compelled to part with their property, but the taxation must be proportional and reasonable, and for public purposes. Taxes may be imposed upon all the inhabitants of the state for general public purposes, or upon the inhabitants of defined localities for local purposes, and when distinct private benefits are received from public works special assessments may be laid upon individuals. We have no doubt that, if the furnishing of gas and electricity for illuminating purposes is a public service, the performance of this service can be delegated by the legislature to cities and towns for the benefit of themselves and their inhabitants, and that such cities and towns can be authorized to impose taxes for this purpose upon their inhabitants, and to establish reasonable rates, which the inhabitants who use the gas and electricity can be compelled to pay.

The fundamental question is whether the manufacture and distribution of gas or electricity to be used by cities and towns for illuminating purposes is a public service. The maintenance of public streets and buildings is a public service, and it may be reasonably necessary to light them in order that the greatest public benefit may be obtained from using them. To say nothing of the usefulness of lighting streets as a means of promoting order, and of affording protection to persons and property, the common convenience of the inhabitants may require that they be lighted. Cities and thickly-settled towns have for a long time been accustomed to light their public buildings and some of their streets at the public expense. If the streets and public buildings are to be lighted, the means are a matter of expediency. If the legislature can authorize cities and towns to light their streets and public buildings, it can authorize them to do this by any appropriate means which it may think expedient. As a question of constitutional...