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sive or unequal in its effect upon persons similarly situated. Discriminations and distinctions between different privileges and occupations are permissible, but a discrimination between different exercises of the same privilege or occupation must have some conceivably rational basis and not be purely arbitrary or founded upon an immaterial fact.2

3

As far as the amount of the tax is concerned, an excise cannot be grossly oppressive or contrary to common right, but if the legislature has the power to withhold the privilege altogether it may put any price it wishes upon its exercise, and one who voluntarily assumes the benefit cannot complain of the burden; if however the privilege is one the exercise of which may be regulated but not forbidden altogether the legislature may not under the guise of taxation impose such a severe burden as to substantially amount to prohibition. It would not be reasonable to impose an excise arbitrarily irrespective of the benefit which the privilege taxed conferred and some method must be resorted to in order to ascertain a fair and just basis on which to calculate the amount of the tax, so that there may be some proportion between the benefits received and the sum paid for their enjoyment. The usual method is to proportion the excise to the value of the property to which the privilege taxed relates; and such a method is not unreasonable even when the property itself is exempt from taxation."

57. Money Bills

Part II, Chapter I, Section III, Article VI of the constitution of Massachusetts reads as follows:

All money bills shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other bills.

This provision of the constitution was intended to establish in this commonwealth the practice under the British constitu2 Portland Bank v. Apthorp, 12 Mass. 252, 258 (1815); Oliver v. Washington Mills, 11 Allen 268 (1865); Minot v. Winthrop, 162 Mass. 113, 123 (1894); O'Keeffe v. Somerville, 190 Mass. 110 (1906); Opinion of the Justices, 196 Mass. 602 (1908); American Uniform Co. Inc. v. Commonwealth. 237 Mass. 42 (1921). 3 Minot v. Winthrop, 162 Mass. 113 (1894); American Uniform Co. Inc. v. Commonwealth, 237 Mass. 42 (1921).

• Commonwealth v. Provident Institution for Savings, 12 Allen 312 (1866). 5 G. L. c. 63 § 30, Development of the Franchise Tax, infra page 531.

tion by which money bills are required to originate in the House of Commons. It has been held that the exclusive constitutional privilege of the House of Representatives to originate money bills is limited to bills that provide for the levy of a tax and thus transfer money from the people to the state, and does not include bills that appropriate money from the treasury for particular public uses. It has also been held that the Senate has an equal right with the House of Representatives to originate an inquiry into the returns of taxable property made by the towns for the purpose of determining the proportionate share of each town in the state tax.2

A provision very similar to the one now under consideration is found in the constitution of the United States," and while it is applicable only to Congress, its interpretation throws some further light on the meaning of the corresponding clause in the constitution of Massachusetts. It has been held that the provision in the federal constitution applies only to acts that levy taxes in the strict sense of the word, and not to acts for other purposes which may incidentally create revenue. Under the practice in Great Britain, the House of Lords has no power to amend a money bill, but must concur with or reject it as it stands; whereas under both the federal and state constitutions the Senate may propose or concur with amendments. It has been held that under the federal constitution a general revenue bill originating in the House of Representatives may be subjected in the Senate to such a radical amendment as striking out a provision for the levy of an inheritance tax and substituting a tax on the income of corporations.5

THE PURPOSES FOR WHICH TAXES CAN BE

LEVIED

58. Taxes can be Levied only for the Public Use

The principle that money cannot be raised under the form of taxation to be devoted to a use not public is expressed in

1 Opinion of the Justices, 126 Mass. 557 (1878).

2 Opinion of the Justices, 126 Mass. 547 (1781).

3 Article 1, Section 7, Clause 1.

Twin City Bank v. Nebeker, 167 U. S. 196 (1897); Millard v. Roberts,

202 U. S. 429 (1906).

5 Flint v. Stone Tracy Co., 220 U. S. 107, 143 (1911).

various ways in the constitution of Massachusetts,' and indeed may be said to follow from the existence of the restrictions upon the power of taxation which are found in the grant of that power to the legislature, a grant of power which is intended to cover the whole subject of legislation for the purpose of revenue and to exclude any arbitrary imposition which could not rightly be dignified by the name of tax. The power to levy taxes is founded on the right, duty and responsibility of maintaining and administering the governmental functions of the state and of providing for the public welfare. To justify any exercise of the power requires that the expenditure which it is intended to meet shall be for some public service or some object which concerns the public welfare. The promotion of the interests of individuals, and the incidental benefit to the public which may result from their prosperity, does not justify the grant to them of public money raised by taxation to enable them either to use their property or to carry on their business to better advantage.2

While the principle itself is easily expressed and understood, its application is often very difficult. The test of a public use for the purpose of taxation is, however, much the same as that employed in ascertaining proper subjects for the power of eminent domain, so that considerable help can be derived from the decisions which determine whether a use is sufficiently public to justify the exercise of eminent domain upon its behalf.*

3

1 It is said in Lowell v. Boston, 111 Mass. 454 (1873), that the limitation is expressed in Article XI of Chapter 2, Sec. 1, by restricting the issuing of moneys from the treasury to purposes of "the necessary defence and support of the commonwealth; and for the protection and preservation of the inhabitants thereof," and in Article IV of Chapter 1, Sec. 1 by declaring the purposes for which the power of taxation may be exercised to be "for the public service, in the necessary defence and support of the government of the said commonwealth and the protection and preservation of the subjects thereof" and in the general provisions of Article X of the Declaration of Rights. Taxation for a use not public is also a deprivation of property without due process of law, in violation of the Fourteenth Amendment to the constitution of the United States. Loan Association v. Topeka, 20 Wall. 655 (1874); Cole v. LaGrange, 113 U. S. 1 (1884); Green v. Frazier, 253 U. S. 233 (1920).

2 Lowell v. Boston, 111 Mass. 454 (1873).

3 Lowell v. Boston, 111 Mass. 454, 462 (1873).

4 The following uses have been held public in this commonwealth so far as to justify the exercise of the power of eminent domain. Highways, though laid out for pleasure travel only, Higginson v. Nahant, 11 Allen 530 (1866), or to reach the house of a single inhabitant, Denham v. Bristol County Commissioners, 108 Mass. 202 (1871), or to open up a single tract of land, Wheelwright v. Boston, 188 Mass. 521 (1905); but not purely private ways, Flagg v.

In many instances the purpose for which it is proposed to expend the public funds is both public and private. In such a case, if the dominating motive for the expenditure of the money is a purely public one, then the expenditure is legal, although the expenditure may result in the acquisition of property by the public authorities which may be incidentally devoted at certain times to uses which are not public. If however the project is merely colorable, masking under the pretext of a public purpose a design to embark the public upon a private enterprise, such an attempt would be a perversion of power and no public funds could be appropriated for it.

A use is not necessarily private because the expense is in part met by individuals. There is no rule that the expense of a particular undertaking must be borne either wholly by the public or wholly by private parties. Instances are not uncommon in which part of the cost of a public improvement is met by special assessments and part by general taxation, or in which the public pays a fee for the use of a public utility only partly sufficient to bear the expense of maintenance. A contribution of part of the cost of maintaining a public utility which the state might constitutionally operate at its own expense is equally unobjectionable.'

59. What Constitutes the Public Use

The power of the state to authorize the levy of taxes to raise money for the erection of public buildings, such as a state house, court house or town hall, is of course unquestioned.' Flagg, 16 Gay 175 (1860). Railroads, Boston Water Power Co. v. Boston & Worcester R R. Co., 23 Pick. 360 (1839), even a private railway, White v. Blanchard Bros. Granite Co., 178 Mass. 363 (1901), and canals, Hazen v. Essex Co., 12 Cush. 475 (1853). Parks, Holt v. City Council of Somerville, 127 Mass. 408 (1879), and restrictions against the disfigurement of public squares, AttorneyGeneral v. Williams, 174 Mass. 476 (1899). Water-pipes for public supply, Smith v. Lincoln, 170 Mass. 488 (1898), and sewers, Hildreth v. Lowell, 11 Gray 345 (1858). Cemeteries, Balch v. Essex County Commissioners, 103 Mass. 106, (1869). Reclaiming a large tract of useless or noxious land. Talbot v. Hudson, 16 Gray 417 (1860); Dingley v. Boston, 100 Mass. 544 (1868); Moore v. Sanford, 151 Mass. 285 (1890).

⚫ French v. Quincy, 3 Allen 9 (1861); Worden v. New Bedford, 131 Mass. 23 (1881); Davis v. Rockport, 213 Mass. 279 (1913).

Spaulding v. Lowell, 23 Pick. 71, 80 (1839); Wheelock v. Lowell, 196 Mass 220, 224 (1907).

Opinion of the Justices, 231 Mass. 603 (1919).

1 Stetson v. Kempton, 13 Mass. 271 (1816); Minot v. West Roxbury, 112 Mass. 1 (1873); Wheelock v. Lowell, 196 Mass. 220 (1907).

So also public funds may be expended to construct a hall for political rallies, conventions and other public meetings of citizens. A commodious and convenient place in which the citizens may meet and exercise their right of assembling and of considering and discussing public affairs is for the public use in its constitutional sense.2

3

The relief of the poor and needy has from the earliest times been recognized as a proper object for the expenditure of public money. Cities and towns have ample power to provide in any reasonable way for paupers, whether it be by furnishing out-of-door relief or by support in almshouses, or whether their need of relief is permanent or caused by a temporary condition. This power would of course extend to providing immediate relief for those who are left without food or shelter as a result of a disastrous fire or flood or other like calamity; but it does not warrant the raising of money by taxation in order to loan it to the owners of land which has been swept by a disastrous fire, in order to enable them to rebuild; for in such case the benefit would be primarily to the individuals, and the public advantage in having the burned district speedily rebuilt would be secondary.*

The means of transportation for people at large is a matter of public interest. In earlier times turnpikes and toll bridges in private ownership afforded facilities for travel. Gradually these have been taken over by counties, cities and towns and the tolls abolished. The construction, maintenance and repair of public highways is a lawful object for the expenditure of public funds, and this power extends to the lighting of the

2 Wheelock v. Lowell, 196 Mass. 220 (1907). So also it has been held that public funds may be expended for repairing a town clock, Willard v. Newburyport, 12 Pick. 227 (1831) and even for building a market house, Spaulding v. Lowell, 23 Pick. 71 (1839).

3 Opinion of the Justices, 182 Mass. 605, 609 (1903). If a person falls into immediate need he must be relieved, no matter how much property he may have. Groveland v. Medford, 1 Allen 23 (1861).

4 Lowell v. Boston, 111 Mass. 454 (1873).

5 Opinion of the Justices, 204 Mass. 607, 609 (1910); Opinion of the Justices, 211 Mass. 624, 628 (1912). The real purpose for which public money is being spent may be inquired into; but if a highway is laid out for public travel the public funds may be expended therefor, even if the underlying motive was to open up a tract of land belonging to the town. Wright v. Quinn,

Mass.

(1921).

Opinion of the Justices, 150 Mass. 592 (1890); Spaulding v. Peabody, 153 Mass. 129 (1891). See also Dickinson v. Boston, 188 Mass. 595 (1905).

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