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in the general requirement that taxes can be levied only for the public use.

In Massachusetts there are many charitable or educational institutions, such as hospitals, colleges and academies, which are maintained by trustees or by private educational or charitable corporations by means of endowments provided by the generosity of private individuals. As it would clearly rest within the power of the legislature to establish and maintain with the public funds institutions owned and operated by the state and carrying on similar work, it was generally considered to constitute a public use of the public funds to assist the existing institutions of this character by grants or donations. A fear of the evils which might flow from the unlimited subsidizing of private institutions, especially those maintained by particular religious sects, led however to the restriction and finally to the prohibition of such a practice.

The Eighteenth Amendment to the constitution of Massachusetts, adopted in 1855, in substance provided that money raised by taxation for the support of the public schools should be expended only upon schools conducted under the order and superintendence of the municipal authorities and not upon the schools of any religious sect. It was held that this provision applied only to the schools which are part of our established system of common education, whether supported wholly by taxation or not, and that it did not prohibit the appropriation of public funds in aid of higher educational institutions such as incorporated colleges or academies, even if under sectarian or ecclesiastical control. Indeed, it was only by a bare majority that the supreme court held in an advisory opinion rendered in 1913 that the constitution prohibited the appropriation of public money for aiding directly any church, religious denomination, or religious society.*

1 See supra §§ 52. 53 as to exempting such institutions from taxation. 2 The Eighteenth Amendment prohibited the adoption of a school managed by private parties as part of the common school system of a town and the maintenance of such school in part or in whole at the expense of the taxpayers, Jenkins v. Andover, 103 Mass. 94 (1869). A statute providing that a town which does not maintain a high school shall pay for the tuition of any child who resides in the town and attends the high school of another town is not in violation of the Eighteenth Amendment. Fiske v. Huntington, 179 Mass. 571 (1901).

3 Merrick v. Amherst, 12 Allen 500 (1866); Jenkins v. Andover, 103 Mass. 94 (1869); Opinion of the Justices, 214 Mass. 598 (1913).

4 Opinion of the Justices, 214 Mass. 598 (1913).

In 1917 the Eighteenth Amendment was replaced by the Forty-sixth Amendment which prohibits the use of public money for any school, whether under public control or otherwise, in which any denominational doctrine is inculcated, or for any educational, charitable or religious institution or undertaking whatever not under public ownership and control, except free public libraries and except when necessary to carry out legal obligations already entered into.

In 1910 the supreme judicial court in two advisory opinions held that the public funds could not be expended in order to acquire land adjacent to but outside the limits of a public way, and which was subdivided into lots of insufficient size and shape for adequate buildings, for the purpose of dividing the land so acquired into appropriate lots and selling or leasing it to private parties. In the following year, by the adoption of the Thirty-ninth Amendment to the constitution, expenditures for such a purpose, under special act of legislature, was authorized. In 1912 the supreme judicial court, in an advisory opinion, held that it was not within the power of the legislature to authorize the use of public funds in order to purchase land for developing, building upon and renting and selling the same, for the purpose of providing homes for mechanics, laborers or other wage earners. In 1915, by the adoption of the Fortythird Amendment, power was given to the legislature to expend the public funds to acquire land to provide homes for citizens, subject to the condition that no land or buildings should be sold for less than the cost thereof.

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Other constitutional amendments affecting the purposes for which taxes can be levied are the Forty-seventh, declaring that the maintenance and distribution at reasonable rates, during time of war, public exigency, emergency or distress, of a sufficient supply of food and other common necessaries of life and the providing of shelter are public functions; the Forty-ninth, declaring that the conservation, development and utilization. of the agricultural, mineral, forest, water and other natural resources of the commonwealth are public uses; and the Fifty-first, declaring that the preservation and maintenance of ancient landmarks and other property of historical or antiquarian inter

5 Opinion of the Justices, 204 Mass. 607, 616 (1910).
6 Opinion of the Justices, 211 Mass. 624 (1912).

est is a public use. All of the last named amendments were proposed by the Constitutional Convention of 1917 and ratified and adopted by the people. Of these the Forty-seventh and Fifty-first Amendments would not seem to constitute more than a declaration of the existing law; and until the Forty-ninth Amendment is acted upon and construed by the courts it is difficult to estimate the extent of the power granted. It should be remembered that taxation for a private use, though expressly authorized by a state constitution, would be obnoxious to the Fourteenth Amendment to the federal constitution, and that the supreme court of the United States, although it would give a broad construction to the powers of the legislature of a state with respect to the taxation of the citizens of such state, would not be bound by the declaration of a state constitution that a purpose for which taxation was authorized constituted a public use.

62. The Purposes for which a City or Town may Levy

Taxes

The power of a city or town to raise money by taxation is not commensurate with the power to levy taxes which is conferred upon the legislature by the constitution of the commonwealth.1 Towns and cities are corporations of limited powers and cannot raise money by taxation or expend money raised by taxation except for purposes expressly or by plain implication authorized by the legislature. A tax levy which includes an unauthorized appropriation is pro tanto void. The purposes for which a city or town may expend money are set forth in detail in chapter forty of the General Laws.

If the object of an appropriation is within the scope of the corporate powers of a town, the town is the proper judge of the

1 Flood v. Leahy, 183 Mass. 232 (1903).

2 Stetson v. Kempton, 13 Mass. 272 (1816); Parsons v. Goshen, 11 Pick. 396 (1831); Spaulding v. Lowell, 23 Pick. 71 (1839); Tash v. Adams, 10 Cush. 252 (1852); Hood v. Mayor & Aldermen of Lynn, 1 Allen 103 (1861); Frost v. Belmont, 6 Allen 152 (1863); Freeland v. Hastings, 10 Allen 570 (1865); Minot v. West Roxbury, 112 Mass. 1 (1873); Coolidge v. Brookline, 114 Mass. 592 (1874); Cusick v. Brookline, 123 Mass. 91 (1877); Spaulding v. Peabody, 153 Mass. 129 (1891); Waters v. Bonvouloir, 172 Mass. 286 (1899).

3 It was held in Gerry v. Stoneham, 1 Allen 319 (1861), that an appropriation of $100 for an unauthorized purpose made the entire tax of the year void, but by St. 1859, c. 118, now G. L. c. 59 § 82, only the illegal portion of the tax is void. See infra page 311.

amount of the appropriation and of the details of carrying it out. It is perfectly proper for the town to make reasonable provision for the future though present wants are exceeded and to make a profitable commercial use of what it has acquired in excess of present needs until the whole is required for public use. The objects of an appropriation must be designated in the vote authorizing a tax or otherwise declared and made known at the time of an appropriation."

63. Constitutional Rights of the Taxpayers of a City
or Town

It is a well established principle of constitutional law that taxes may be levied only for the public uses of the district taxed.1 The duty or obligation to pay taxes by the individual is founded on his participation in the benefits arising from their expenditure. It would not be competent for the legislature to donate money, raised by taxation upon persons or property within this commonwealth, for the relief of residents of other states or of foreign countries who may be suffering from famine, flood or other disaster. It would be equally incompetent for the legislature to levy a tax on the property located in one city to pay for a public improvement established for the use of the people of another city,3 or to require one city or town to pay the entire cost of a public improvement established for the use of the whole commonwealth, or to levy a tax upon the whole commonwealth for a public improvement established for the benefit of a single city or town. It has however been held that such a result may be effected by indirect means, and that a statute which authorizes the levy of a tax by the state upon certain classes of property and provides for the distribution of the proceeds of the tax among the cities and towns of the state in accordance with a

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* Haven v. Lowell, 5 Met. 35 (1842); Friend v. Gilbert, 108 Mass. 408 (1871).

5 French v. Quincy, 3 Allen 9 (1861); Foote v. Salem, 14 Allen 87 (1867); Worden v. New Bedford, 131 Mass. 23 (1881).

6 Freeland v. Hastings, 10 Allen 570 (1865).

1 Duffy v. Treasurer & Receiver General, 234 Mass. 42 (1919).

2 Thomas v. Gay, 169 U. S. 264, 276 (1898).

3 Hampshire v. Franklin, 16 Mass. 76 (1819); Norwich v. Hampshire County Commissioners, 13 Pick. 60 (1832); Opinion of the Justices, 234 Mass. 612, 620 (1920).

4 Merrick v. Amherst, 12 Allen 500 (1866).

5 Kingman, Petitioner, 153 Mass. 566 (1891).

rule of apportionment which bears no relation to the location of the property from which the tax was derived, while it goes to the verge of, does not overstep the limits of constitutional power, even if it necessarily results in the taxation of property situated in certain cities and towns, almost wholly for the use and benefit of other cities and towns. In fact the supreme court has expressly held that the distribution of public monies by way of expenditures either directly by state officers or indirectly through county, city, town or district officers need not be according to any principle of apportionment or equality other than such as commends itself to the wisdom of the general court."

So also the legislature has a wide discretion in the apportionment of public burdens among the different subdivisions of the state, and a statute imposing the cost of maintaining a particular public improvement upon the counties, cities or towns that may in the opinion of the legislature be benefited by the establishment of the improvement is unquestionably constitutional. A town may be compelled to pay the whole or part of the cost of a state institution within its limits. if the town receives most of the benefit from its establishment 9 or if, as in the case of public highways, such provision is a fair and convenient way of distributing a general public burden among the cities and towns of the state. The apportioning of a public burden among certain specified cities and towns is not a betterment assessment and the principles applicable to the

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6 Duffy v. Treasurer & Receiver General, 234 Mass. 42 (1919); Dane v. Treasurer & Receiver General, 237 Mass. 50 (1921).

7 Knights v. Treasurer & Receiver General, 237 Mass. 493 (1921). See also, Lowell v. Oliver, 8 Allen 247, 255 (1864).

8 Norwich v. Hampshire County Commissioners, 13 Pick. 60 (1832); Attorney General v. Cambridge, 16 Gray 247 (1860); Hingham etc. Turnpike Co. v. Norfolk County, 6 Allen 353 (1863); Salem etc. Bridge Co. v. Essex County, 100 Mass. 282 (1868); Dow v. Wakefield, 103 Mass. 267 (1869); Carter v. Cambridge and Brookline Bridge Proprietors, 104 Mass. 236 (1870); Scituate v. Weymouth, 108 Mass. 128 (1871); Northampton Bridge Case, 116 Mass. 442 (1875); Sunderland Bridge Case, 122 Mass. 459 (1877); Brayton v. Fall River, 124 Mass. 95 (1878); Kingman, Petitioner, 153 Mass. 567 (1891); Adams, Petitioner, 165 Mass. 497 (1896); Prince v. Crocker, 166 Mass. 347 (1896); Kingman, Petitioner, 170 Mass. 111 (1898); Browne v. Turner, 176 Mass. 9 (1900).

9 Merrick v. Amherst, 12 Allen 500 (1866); Hanscom v. Lowell, 165 Mass. 419 (1896); Attorney-General v. Williams, 174 Mass. 476 (1899); Hodgdon v. Haverhill, 193 Mass. 406 (1907).

10 Freeland v. Hastings, 10 Allen 570, 580 (1865).

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