8 public ways and keeping them sprinkled. So also the ownership and operation of a ferry by a municipal corporation contravenes no constitutional limitation. It was no violation of the constitutional rights of the taxpayers when the commonwealth in 1862 acquired the ownership and assumed the management of the Troy and Greenfield Railroad." It is equally unobjectionable when the public funds are used to aid in the construction of a steam railroad owned and operated by a private corporation whether such aid is in the form of a subsidy, a loan or a subscription to stock, since the primary purpose of such expenditure is to improve the means of public travel.1o Under modern conditions local transportation by an electric railway may also so concern the welfare and convenience of all the inhabitants of a particular district that the legislature may constitutionally provide for the construction of a subway at the public expense for the use of a railway operated by a private corporation," or authorize a deficit in the operating expenses of such a railway to be met by a contribution of public funds.12 Money may be raised by taxation in order to enable a city or town to furnish to its inhabitants one of the necessities and conveniences of life, when the enterprise is of such a character that it concerns the welfare and convenience of all the inhabitants of the city or town and cannot be successfully undertaken by private individuals without the aid of a franchise from the state, such as a grant of the right to maintain permanent structures in the public streets, or the right to exercise eminent domain, and when as a practical matter, having due regard to the reasonable convenience of the public, there can be no competition among different parties furnishing such necessities and conveniences. For this reason a municipal corporation may be 7 Sears v. Boston, 173 Mass. 71 (1899); Phillips Academy v. Andover, 175 Mass. 118 (1900). 8 Attorney General v. Boston, 123 Mass. 460 (1877). See also Davies v. Boston, 190 Mass. 194 (1906). 9 St. 1862, Chap. 156. See Troy v. Greenfield R. R. Co. v. Commonwealth, 127 Mass. 43 (1879). 10 Portage County Supervisors v. Wisconsin Central R. R. Co., 121 Mass. 460 (1877): Kittredge v. North Brookfield, 138 Mass. 286 (1885); Sears v. Street Commissioners of Boston, 180 Mass. 274, 279 (1902). 11 Prince v. Crocker, 166 Mass. 347 (1896); Browne v. Turner, 176 Mass. 9 (1900); Boston v. Treasurer & Receiver General, 237 Mass. 403 (1921). 12 Opinion of the Justices, 231 Mass. 603 (1919); Chelsea v. Treasurer & Receiver General, 237 Mass. 422 (1921). authorized to undertake such public utilities as the furnishing of a public water supply,13 or the manufacture and distribution of gas and electric light for sale to its inhabitants. It is not however within the power of the legislature to authorize a municipal corporation to engage in the business of selling a commodity to its inhabitants, even though the commodity be one of the necessities of life, such as fuel, if the business is an ordinary private occupation which can be and ordinarily is carried on without the aid of a franchise from the state.15 It would not be a public use of money for the government to expend it in the establishment of stores or shops for the purpose of carrying on a business of manufacturing and selling goods in competition with individuals with a view either to the profit that could be made through the business, or to the indirect gain that might result to the purchasers if prices were reduced by governmental competition.16 When however, in time of scarcity, it appears that agencies of government can obtain a commodity constituting one of the necessities of life when individuals cannot, a municipal corporation may be authorized to purchase and sell such commodity for the relief of the community as long as such conditions continue."7 The state or a municipal corporation cannot enter upon a private business merely for the profit that is expected to be derived therefrom,18 but when a municipal corporation has acquired property in good faith for public purposes, it may rent to private parties so much of such property as is not at the time 13 Opinion of the Justices, 150 Mass. 592 (1890); Watson v. Needham, 161 Mass. 404 (1894). 14 Opinion of the Justices, 150 Mass. 592 (1890). 15 Opinions of the Justices, 155 Mass. 598 (1892); Opinion of the Justices, 182 Mass. 605 (1903). A state statute authorizing a town to issue its bonds in aid of a private manufacturing enterprise is in violation of the federal constitution, as authorizing taxation which results in the taking of property without due process of law. Loan Association v. Topeka, 20 Wall. 655 (1874). The power of a town to erect a market-house was sustained on the ground that it was sanctioned by ancient usage. Spaulding v. Lowell, 23 Pick. 71 (1839). 16 See however Jones v. Portland, 245 U. S. 217 (1917), in which it was held that the establishment of a municipal ice-plant was not a violation of the constitutional rights of the taxpayers, and Green v. Frazier, 253 U. S. 233 (1920), in which the action of a state in engaging in the business of marketing farm products and of providing homes for the people was sustained. 17 Opinion of the Justices. 182 Mass. 605 (1903). See also the Forty-seventh Amendment to the constitution infra § 61. 18 Opinion of the Justices, 204 Mass. 607 (1910); Opinion of the Justices, 211 Mass. 624 (1912). needed for the public use,19 and it may undergo a reasonable expense to make such property available for rental.20 So also while a municipal corporation could not raise money in order to invest the same in the securities of private corporations for the profit to be derived therefrom, it may invest money which it has lawfully raised rather than leave it idle until required. for the public use.21 60. Gratuities, Bounties and Pensions Public funds cannot be constitutionally employed to make gifts or gratuities to private individuals.1 On the other hand the legislature in authorizing the payment of public funds to individuals is not restricted to meeting only such obligations as could not be avoided without violating constitutional rights. The legislature is not forbidden to be just in some cases where it is not required to be by the letter of paramount law. Whenever it can fairly be thought that some public good will be served by the grant of an unstipulated reward or by the payment of reimbursement or compensation which the state is not constitutionally bound to make, such grant or payment will constitute an expenditure of money for the public use.3 A statute which provides that those dealing with the public shall be paid more than the goods furnished or services performed are reasonably worth would be objectionable as authorizing a gratuity; but the legislature is not bound to provide that laborers on the public works shall be engaged on the terms most favorable to the public with respect to wages and hours of labor that can be secured by open competition, for the legislature may deem that the superior efficiency of well paid labor serving during reasonable hours will justify the employment of men on less favorable terms than could be secured by the stress of competition. So also the legislature may provide 19 French v. Quincy, 3 Allen 9 (1861); Worden v. New Bedford, 131 Mass. 23 (1881); Wheelock v. Lowell, 196 Mass. 220 (1907); Davis v. Rockport, 213 Mass. 279 (1913); Wright v. Walcott, Mass. 20 Davis v. Rockport, 213 Mass. 279 (1913). 21 Foote v. Salem, 14 Allen 87 (1867). (1921). 1 Lowell v. Boston, 111 Mass. 454 (1873); Mead v. Acton, 139 Mass. 341 (1885); Opinion of the Justices, 186 Mass. 603 (1904); Opinion of the Justices, 190 Mass. 611 (1906); Whittaker v. Salem, 216 Mass. 483 (1914). 2 Earle v. Commonwealth, 180 Mass. 579 (1902). 3 Infra notes 4, 5, 6, 12. 13, 17, 18, 19, and 20. 4 Atkin v. Kansas, 191 U. S. 207 (1907); Opinion of the Justices, 208 Mass. 619 (1911); Woods v. Woburn, 220 Mass. 416 (1915). that laborers employed by contractors upon the public works may, if their wages are in arrears, recover from the city or town for whom the work is being done the amount due them from the contractor.5 Public funds may be used to pay for injuries to property caused by the construction of public works although the injuries are of such a character that the owner of the property has no constitutional right to compensation." So also the legislature may make municipal corporations liable in tort for injuries to persons or property for which there was no liability at common law. Examples of such legislation are the statutes which render a city or town liable for injuries from defective highways,' for injuries from mobs and for unlawfully excluding children from the public schools." 8 10 With respect to bounties, pensions and other rewards for military service, the principle to be deduced from the decisions is that if the payment is made for the purpose of encouraging the spirit of loyalty and patriotism rather than merely as a gratuity to those who have deserved well of the state it will be constitutional. Thus it has been held that bounties paid to encourage enlistments during the progress of a war,1o statues and memorials to those who served in war," a preference in public employment to veterans of a war who are competent to perform the duties of such employment,12 and even a bounty or bonus to all who served in a war, if granted for the purpose of promoting loyalty and patriotism,13 may be constitutionally provided by the legislature. On the other hand the payment of bounties to those who had not received them during the war merely to equalize the compensation of those who served," the right to public employment regardless of ability to perform the service,15 and the construction of a building for the use of an 5 Callahan v. Boston, 175 Mass. 201 (1901). 6 Earle v. Commonwealth, 180 Mass. 579 (1902). 7 G. L. c. 84 § § 15-25 inc. 8 G. L. c. 269 § 8. 9 G. L. c. 76 § 16. 10 Freeland v. Hastings, 10 Allen 570 (1865). 12 Opinions of the Justices, 166 Mass. 589 (1896). 13 Opinion of the Justices, 211 Mass. 608 (1912). See also St. 1919 Chap. 283 providing for a bonus for those who served in the war with Germany. 14 Mead v. Acton, 139 Mass. 341 (1885); Opinion of the Justices, 186 Mass. 603 (1904); Opinion of the Justices, 190 Mass. 611 (1906). 15 Opinions of the Justices, 166 Mass. 589 (1896). 16 association of soldiers of a former war are beyond the constitutional power of the legislature. The same principles apply to the payment to individuals who have performed meritorious services to the public of a civil nature, when there is no legal obligation to make such payment. There is no constitutional objection to reimbursing individuals for money they have advanced on behalf of the public," or for expenses they have incurred in the performance of public service or the defense of public rights.18 Thus when one employed to work upon a public building belonging to a town has performed his work with such fidelity that the town has received a benefit and it is just and equitable that he should receive compensation in addition to what his contract called for, the constitution does not prohibit the payment to him by the town of such additional compensation.19 Similarly the legislature may authorize a town to pay to the dependents of a person who died while holding office the salary for a period of time after his decease to which he would have been entitled if living, if it can fairly be thought that the public good will be served by such an unstipulated reward.20 There is however a limit to this power. However meritorious a project may appear to be either in its practical or ethical or sentimental aspects, if it is in essence a gift to an individual rather than a furthering of the public interest, money raised by taxation cannot be appropriated for it. Hence a town cannot grant an employee a prolonged leave of absence from duty at half pay.21 61. Special Constitutional Provisions Affecting the 21 There have been a number of constitutional amendments adopted from time to time, some of which restrict and others expand the limitation upon governmental expenditure included 16 Kingman v. Brockton, 153 Mass. 255 (1891). 17 Freeland v. Hastings, 10 Allen 570 (1865). 18 Nelson v. Milford, 7 Pick. 18 (1828); Bancroft v. Lynnfield, 18 Pick. 566 (1836); Babbitt v. Savoy, 3 Cush. 530 (1849); Hadsell v. Hancock, 3 Gray 526 (1855); Fuller v. Groton, 11 Gray 340 (1858); Lawrence v. McAlvin, 109 Mass. 311 (1872); Curran v. Holliston, 130 Mass. 272 (1881). 19 Friend v. Gilbert, 108 Mass. 408 (1871). 20 Opinion of the Justices, 175 Mass. 599 (1900). 21 Whittaker v. Salem, 216 Mass. 483 (1914). |