240.

[12] The only limitation upon the absolute rights of riparian proprietors in nontidal rivers and streams is the public right of passage for fish, and also for passage of boats and logs, provided the streams in their natural condition are of sufficient size to float boats or logs. Subject to this qualified right of passage, nontidal rivers and streams are absolutely private. Wadsworth v. Smith, 11 Me. 281, 26 Am. Dec. 525; Pearson v. Rolfe, 76 Me. 386.

[13-17] So, too, the riparian proprietor may avail himself of the momentum of the stream as power for manufacturing and industrial purposes, provided, of course, the water is not thereby unreasonably detained or essentially diminished. Blanchard V. Baker, 8 Me. (Greenl.) 253-266, 23 Am. Dec. 504. He can build dams upon his own land to develop power for milling or manufacturing purposes, subject to the provisions of the Mill Act and to the payment of damages for all flowage caused thereby; but the flowage rights thus acquired become property rights in the nature of an easement appurtenant to the manufacturing plant. All these rights which the riparian proprietor has in the /running streams are as certain, as absolute, and as inviolable as any other species of property, and constitute a part of his land as much as the trees that grow thereon, or the mill or the house that he builds thereon. He can be deprived of them only through the power of eminent domain constitutionally exercised. In short, we cannot conceive of any sense in which the public can be said to have any ownership or rights in the water powers of the state as distinct from any other class of property. A water power is not alone the water flowing in the stream, but it includes, even if undeveloped, the site of the dam and the elevation at or from which power may be generated by the falling water. It is all of these combined. It does not exist apart from the bed and banks of the stream. If the power is developed, then the potential becomes actual, and the use of the momentum is attached to the dam and becomes an integral part thereof. The riparian proprietor does not own the water which is stored in his dam or is flowing by his premises. But he has the right to use it without unlawful or unreasonable diminution or diversion. The water is an element in the value of the land over which it flows. If the bed of a river has a sharp declivity, the flowing water, if utilized, creates power which adds to the value of the land; therefore the water power "becomes an element of value, not as water, not as power, but as an integral part of the mills themselves." Water Power Co. v. Auburn, 90 Me. 64, 37

With these basic principles in mind, we will now consider the submitted questions. [18] "Question No. 1. May the Legislature authorize the construction and development, by the state of water storage reservoirs and basins for the purpose of controlling and conserving the waters of the public lakes and great ponds, of increasing and regulating the flow of the rivers flowing therefrom, and of increasing the value and capacity of the water powers of said rivers?"

If the last clause were omitted we might have answered this question in the affirmative, as it might be conceded that the improvement of our rivers for the purpose of improving the facilitles of navigation on a river naturally navigable or floatable, and thereby floating the products of the farm and of the forests to market, would be a matter within the constitutional power of the Legislature. It would be the improvement of waterways for transportation, and therefore would be akin to the promotion of railroads, which are no more than improved highways. Taxation in aid of the construction of railroads is deemed to be a public purpose and held to be constitutional on that ground. Dyar v. Farmington, 70 Me. 515. Taxation for the improvement of rivers and streams for the purpose of navigation would seem to be constitutional for the same reason.

But the question goes further, and adds, "and of increasing the value and capacity of the water powers of said rivers."

If this last phrase was intended to cover only what the grammatical construction might indicate, namely, that it is only one of several purposes for which the state might exercise its authority, and at that merely a subsidiary or incidental purpose, we might still, although with some hesitation and reservation, return an affirmative answer. The facts connected with each particular case must needs be known before we could reply with confidence.

If, however, this clause is intended as the paramount purpose to which the preceding clauses are but introductory, and the real question in the minds of the members of your honorable body is whether the state may develop storage reservoirs for conserving the waters of the great ponds, and increasing and regulating the flow of the outlet rivers and streams for the chief purpose of increasing the capacity and value of the privately owned water powers on said rivers and streams whether developed or undeveloped, then we must answer this question in the negative.

A patient study of the phraseology leads us irresistibly to the conclusion that the last clause states the dominant purpose. The control and conservation of the waters of great ponds, and the increase and regulation of the

two questions together, the apparent plan

contemplates that the state at its own expense shall acquire, develop, and maintain these storage reservoirs in great ponds and then reimburse itself for the outlay either in whole or in part, or perhaps at an ultimate hoped-for profit from the owners of the water powers below.

If

[19] With the wisdom or expediency of such a project we have nothing to do. constitutional, that would be a matter for the Legislature to decide. We base our negative answer upon two obstacles existing under our organic law.

[20] In the first place, as the cost of all such development must be borne in the first instance by the state, it must be met either directly and immediately by taxation throughout the state, or indirectly through the issue of bonds which can be met later only by taxation and which simply postpones the day of reckoning. In our opinion, taxation for this purpose, either directly or indirectly, is beyond the constitutional powers of the Legislature to authorize. Article 4, part 3, section 1, of the Constitution of Maine provides as follows:

"The Legislature shall have full power 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."

[21] The established construction of this provision as to the scope of legislative powers governing taxation is that the purpose for which the taxes are raised must be one which is admitted in law to be just and reasonable, and proper for government to carry out. It must be in the exercise of a governmental function. The state cannot enter upon a commercial enterprise, however alluring the prospect, and tax the people for its promotion. In 1871 there was a movement to develop and increase the manufacturing industries of the state, and the Justices of this court were asked by the House of Representatives their opinion upon this question:

"Has the Legislature authority under the Constitution to pass laws enabling towns by * * * loans of bonds to assist individuals or corporations to establish or carry on manufac

The Justices answered in the negative, and Chief Justice Appleton expressed his views upon the question in most vigorous and convincing terms. Opinion of the Justices, 58 Me. 596. Decisions involving the same principle, and to the same effect, were soon afterward rendered. Allen v. Jay, 60 Me. 124, 11 Am. Rep. 185; Brewer Brick Co. v. Brewer, 62 Me. 62, 16 Am. Rep. 395. And such is the law to-day. Other illustrations of futile attempts on the part of the Legislature to transcend the function of government and embark upon business enterprises, however commendable in themselves, may be cited: Thus an act authorizing townships to subscribe to the stock of any corporation organized to erect and operate sugar mills in the township and to levy taxes therefor. Dodge v. Mission Township, 107 Fed. 827, 46 C. C. A. 661, 54

L. R. A. 242. An act to encourage the development of the coal, natural gas, and other resources of their localities by subscribing for the stock of companies organized for that purpose. City of Geneseo v. Gas Co., 55 Kan. 358, 40 Pac. 655. An act empowering the village of Sauk Rapids to issue bonds for the "purpose of aiding in the construction of a dam across the Mississippi river at said Sauk Rapids, for the purpose of improving the water power of said river at the said village." The water power was in private ownership. The court in declaring the act beyond legislative power used this significant language:

The

"The public has a right to the use of a railroad, for any one of the public may of right use it, under reasonable rules and regulations, and upon reasonable terms; but there is no such right with respect to a water power. owner may exclusively use it himself, or grant the right to use it to such persons as he may select, to the entire exclusion of everybody else. No one of the public may of right insist on having any use of it. The public has no interest in its improvement, and derives no benefit from it, beyond the incidental benefit arising from any person improving his own property. That is not an interest that will justify taxation." Coates v. Campbell, 37 Minn. 498, 35 N. w. 366.

To the same effect, see Weismer v. Village of Douglas, 64 N. Y. 91, 21 Am. Rep. 586, and Sutherland v. Village of Evart (decided by United States Circuit Court of Appeals) 86 Fed. 597, 30 C. C. A. 305.

In Lowell v. Boston, 111 Mass. 454, 15 Am. Rep. 39, an act authorizing the city of Boston to issue bonds and lend the proceeds secured by mortgage on land to the sufferers from the great conflagration of 1872, was held to be in violation of the Constitution, and the reasons are stated as follows:

"The protection of the interests of individuals, either in respect of property or business, although it may result incidentally in advance

In other words, a state is simply a political unit, and not a business corporation, except incidentally to further its political purposes. In its organization and machinery it is not adapted to acquire, own, manage, or make a profit out of lands or other property except for public uses. Banton v. Griswold, 95 Me. 445-449, 50 Atl. 89.

The decisions in Laughlin v. City of Portland, 111 Me. 486, 90 Atl. 318, 51 L. R. A. (N. S.) 1143, Ann. Cas. 1916C, 734, and Jones v. City of Portland, 113 Me. 124, 93 Atl. 41, subsequently affirmed by the Supreme Court of the United States (245 U. S. 217, 38 Sup. Ct. 112, 62 L. Ed. 252, L. R. A. 1918C, 765, Ann. Cas. 1918E, 660), in no way conflict with this principle. In those cases the Municipal Fuel Yard Act (R. S. c. 4, § 64) was held to be within the power of the Legislature on the ground that it enables our citizens to be supplied with fuel, which is a necessity in its absolute sense to the enjoyment of life and health, and which could otherwise be obtained with great difficulty and at times perhaps not at all, and whose want would endanger the community as a whole. The elements of commercial enterprise or pecuniary benefits to the municipality either direct or indirect were entirely lacking. In fact, they were expressly prohibited by the statute under consideration which compelled the furnishing of fuel by municipalities at cost. That decision was in line with the general rule laid down by Judge Cooley in his work on Constitutional Limitations when he declares that if the object is to furnish "facilities for its citizens in regard to those matters of public necessity, convenience, or welfare, which on account of their peculiar character, and the difficulty, and perhaps impossibility, of making provi

It might be that in order to develop power to be applied by the state to some admittedly public purpose, such as public lighting or a power plant in aid of the operation of a railroad, the power of taxation could be lawfully invoked, but that is not the purport of the question under consideration. The dominant purpose here is for private benefit and not for the "benefit of the people," and therefore the power of taxation to promote it does not exist.

[22] The second obstacle to the furtherance of the proposed plan is the fact that it necessarily involves the exercise of the right of eminent domain on the part of the state. We are not aware of any great ponds within the state which are surrounded by land owned by the state, and from which the outlet rivers or streams flow through the public domain. If there are any great ponds so situated, they are few in number, of inconsiderable extent, and their outlet streams are of little value for industrial development. We understand that the questions have no reference to such ponds, if any there are. It is common knowledge that title to the lands surrounding substantially all the great ponds of the state and bordering on their outlet streams has passed into private ownership, and therefore the acquisition of these properties by the state, with their water powers developed or undeveloped, would necessitate their being taken by the state under the exercise of the right of eminent domain.

The Declaration of Rights, which stands to-day as it was designed by its framers to stand, as a shield for the protection of the private individual against encroachment and usurpation on the part of the governing powers reads as follows:

"Private property shall not be taken for public uses without just compensation nor unless the public exigencies require it." Const. Me. art. 1, § 21.

[23, 24] Whether the public exigencies require such taking in a given case is a question for the Legislature; whether the taking is "for public uses" is a matter for the determination of the court. And here it must be remembered that, while the power of the state to take private property by taxation is somewhat akin to the power of taking it by eminent domain, yet the term "for public uses" under the clause of the Constitution

just quoted has a much more restricted meaning than "for the benefit of the people" under article 4, pt. 3, § 1, already discussed. This distinction should not be overlooked. The problem, then, is to determine whether the taking by the state of privately owned property and property rights for the contemplated purposes is "for public uses," as that term has been judicially construed in this state. The term "public uses," as applied to the exercise of the power of eminent domain has met with two definitions and has given rise to two lines of decisions in this country, one holding that public use means public advantage, and that

"Anything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns and the creation of new resources for the employment of capital and labor, contributes to the general welfare and prosperity of the whole community, and, giving the Constitution a broad and comprehensive interpretation, constitutes a public use."

The other line of decisions holds that public use means use by the public, or employment by the public, and that therefore, to make a use public, within the eminent domain clause, "duty must devolve on the person or corporation holding property appropriated by right of eminent domain to furnish the public with the use intended, and the public must be entitled as of right to use or employ the property taken." 10 R. C. L. p. 25. Public service corporations, such as steam and electric railroads, telegraph and telephone companies, and water companies, are familiar examples. This state in a comparatively recent case has adopted the latter rule as embodying the spirit as well as the letter of our Constitution, and as the stabler and wiser foundation upon which to build the fortunes of a state and to protect the rights and property of its citizens. The security and safety of the state rest upon the security and safety of the individual, and the security and safety of the individual depend upon the preservation of his sacred rights of life, liberty and property under the law. When these are in jeopardy the state itself is in jeopardy. After a review of many authorities and an illuminating discussion of the fundamental principles involved, this court in 1905 affirmed this interpretation of public uses in the case of Brown v. Gerald, 100 Me. 351, 61 Atl. 785, 70 L. R. A. 472, 109 Am. St. Rep. 526. In that case the court said:

"Public benefit or interest are not synonymous with public use. Neither mere public

* *

*

tically be no limit upon the exercise of this power. * 'Property is devoted to public use, when, and only when, the use is one which the public in its organized capacity, to wit, the state, has the right to create and maintain, and therefore one in which all the public has a right to demand and share in.' Budd v. New York, 143 U. S. 517 [12 Sup. Ct. 468, 36 L. Ed. 247]. In a broad sense it is the right in the public to an actual, and not to an incidental benefit. ** It is the right of the public as individuals to use, when occasion arises. The use must be for the general public, or some portion of it, and not a use by or for particular individuals. * * It is not necessary that all of the public should have occasion to use. It may suffice if very few have, may ever have, occasion. * It is necessary that every one, if he have occasion, shall have the right to use. * * * It must be more than a mere theoretical right to use. It must be an actual, effectual right to use."

or

* *

Applying this accepted definition of public uses it is obvious that the state cannot take property from one class of individuals or private corporatious for the purpose of bene fiting another class of individuals or private corporations. It cannot take a privately owned dam or dam site from A. for the purpose of increasing the storage and thereby improving the privately owned water powers of B. or C. or D. It seems clear that the great public benefit which is supposed to follow from the exercise of this power is not a public use. It is not a use of which the public may avail itself if it have occasion. It is a private use pure and simple.

A manufacturing corporation which might reap the benefit is called into being by no public necessity, exercises no sovereign powers, subserves no public use, and is subject to no public duties. Further, if the state may exercise the power suggested, it may commit the execution thereof to any agency, corporate or otherwise, and this far-reaching right may be committed to any corporation. Riche v. Bar Harbor Water Co., 75 Me. 91. The proposed plan of state development of reservoirs for storing the waters of great ponds may render the flow of our rivers more uniform, may conserve the water supply, may tend to the development of more mill sites and the enlargement of existing mills, all of which are incidentally of public benefit. But the public benefit is only incidental. In its essential and legal aspect the plan is merely an aid to private enterprise.

We therefore answer question No. 1 in the negative; but, while so answering, we wish it to be understood that our opinion is not to be construed or extended beyond our interpretation of the question answered.

It should be further understood that this

the protection of the people, the preservation of the peace and order of society, and the health and safety of its members. Skowhegan v. Heselton, 117 Me. 17, 102 Atl. 772. It was by virtue of this police power residing in the people that the Justices upheld the constitutionality of a proposed law to regulate or restrict the destruction of trees growing on wild land and to prohibit wanton and wasteful cutting. Neither the power of taxation nor of eminent domain was involved. Opinion of Justices, 103 Me. 506, 69 Atl. 627, 19 L. R. A. (N. S.) 422, 13 Ann. Cas. 745. As was said by the court in Union Ice Co. v. Ruston, 135 La. 898, 66 South. 262, L. R. A. 1915B, 859, Ann. Cas. 1916C, 1274:

"The police power is the power to regulate the business of others and not the power to go into business."

Nor is it necessary to consider in this discussion the essential nature and scope of the Mill Act, so called (R. S. c. 97), which has existed in this state since its organization a century ago, and in the mother commonwealth of Massachusetts for more than a century prior thereto. Province Laws 1714, c. 111; Corse v. Dexter, 202 Mass. 31, 88 N. E. 332. This act, generally speaking, authorizes any man upon his own land to erect a water mill | and dam to raise water for working it upon or across any stream not navigable by paying compensation for all flowage damages caused thereby. It arose out of the necessities of the people in the early days, when small water mills of various kinds were essential to the very existence of the settlers, but is now regarded somewhat as a legal anomaly, because at the present day, and under modern industrial conditions, its effect is the acquisition of property rights from one individual or corporation against their will for the benefit of another individual or corporation, by the mere payment of damages. Were it a new proposition, its constitutionality might well be doubted. Jordan v. Woodward, 40 Me. 317. But it has been so long acquiesced in as the policy of the state, and so constantly upheld by judicial decisions, that its validity is no longer debatable. Ingram v. Water Co., 98 Me. 566-572, 57 Atl. 893. It is to be understood that these answers do not involve the mill act nor the rights acquired thereunder.

[25] "Question No. 2. In the case the construction and development of water storage reservoirs and basins as aforesaid is held to be legal, may the state charge to the owners of water powers located on rivers below such storage reservoirs and basins a proportional part of the cost of such construction and development, or in lieu thereof a sum in the nature of a rental or tax, based upon the increased power thereby made available for use of said water power owners?"

As an answer to this question is only desired in case the former question were answered in the affirmative, the Justices infer that no further answer need be made. Since, however, we have indicated, although apparently that inquiry was not in the contemplation of your honorable body, that the state might create storage reservoirs for conserving the waters of great ponds and regulating the flow for the purpose of increasing the navigability of the outlet rivers and streams, the question might arise under No. 2 whether in such cases any tax or rental might be based upon the increased power thereby made available at the various mill sites. We must answer that we know of no such tax that could be assessed on the increased capacity, except an increased tax on the enhanced value of the dam site. That would be in violation of the constitutional provision requiring all taxes assessed by authority of the state to be "apportioned and assessed equally according to the just value thereof." Const. Me. art. 9, § 8, and article 36. This does not; however, involve the question of franchise taxes which may arise under questions No. 3 and No. 4, to be hereafter considered. Nor can we conceive of any kind of rental that could be charged, except possibly under such conditions as prevailed in Kaukauna Co. v. Green Bay, etc., Canal Co., 142 U. S. 254–273, 12 Sup. Ct. 173, 35 L. Ed. 1004, and Green Bay, etc., Canal Co. v. Patten Paper o., 172 U. S. 58-77, 19 Sup. Ct. 97, 43 L. Ed. 364; where there was a leasing of the surplus power incidentally created and that was a matter of agreement between the parties. Nor could any charge be enforced upon the lower water power owners, either in law or in equity. A person cannot be made a debtor against his will. If an upper riparian proprietor sees fit to improve the storage system, he cannot charge a lower proprietor with any portion of the cost. Artificial improvements inure to the benefit of the lower proprietors. Phillips v. Sherman, 64 Me. 171; Weare v. Chase, 93 Me. 269, 44 Atl. 900. True, the owner below can claim no special rights in the additional storage. He is entitled of right to only the natural flow of the stream; but, if more than the natural flow at certain seasons comes to him, he can use it without being forced to pay therefor. This portion of our answer, however, we regard as quite academic, as the purpose of this supposed improvement is evidently not the purpose contemplated by the questions as framed.

"Question No. 3. Where the Legislature has granted a private corporation the right to erect a dam to control the waters of a public lake or great pond without raising the natural high water level thereof, in order that the waters therein may be impounded and used for purposes of such corporation, may the Legislature subsequently impose a tax upon such corporation, based upon the