The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1892-05-11
WHAT CITIES MAY Do.

just been given by the members of the
Massachusetts Supreme Court on the
question of the constitutionality of a pro-
posed law to authorize the establish
ment of municipal coal yards, that is
coal yards under the management of the
city for the sale to the public, without
discrimination, of coal Five ofth jus.
tees reply that such a law would be un-
constitutional, setting forth their conclu-
sions in the following language:
Whether the legislature can authorize a CITY
or town to buy coal and wood and to sell them
to its Inhabitants for fuel must he determined
by considering whether the carrying on such a
business Tor the benefit OF the Inhabitants can
be regarded as a public service. This inquiry
underles all the questions on which our opinion
Is required. Ii such a business is to be carried
On 81 II must oe with money raised by taxation.
1t is settled that the legislature can authorize a
city or town to tax its inhabitants only
for public purposes. This is not only the law
OF the commonwealth, but of the States gener-
ally and OF the United States.
We are not aware of any necessity why cities
anu towns Snoulq undertake this form of bust
ness any more than many others which have
Always been conducted by private enterprise,
traordinary poWesr the commonwealth may ex-
efcise, IN extraordinary eXigencies, for the
salely OF the State or the welfare of the nhabi-
tantS.
II there be any advantage to the inhabitants
ID nLuylng and selling wood for fuel at the risk
OF inc community on a large scale and on what
mas Deen called the cooperative plan, we are of
tnei opinion That the constitution does not con-
template this as one of the ends for which the
government was established, or as public SER
wee for which cities and towns may be author
lzed to tax their inhabitants.
Judge Holmes dissents and holds that
such law would be constitutional. He
says:
am of opinion that when money is taken to
enable public body to offer to the public, with
OUT discrimination, an article of general neces-
SHY. lle purpose is no less public when that az
bicle Is WOOD or coal than when it is water or
gas, OF electricity, or education, to say nothing
OF cases IKE the support of paupers or the tax
ing OF lands for railroads or public markets.
see no ground for denying the power of the
Legislature to enact the laws mentioned in the
questlOnS proposed. The need or expediency
OF such legislation is not for us to consider.
Judge Barker answers in effect that
such law would under some conditions
be constitutional, under others not. He
says:
Under your constitution the end of the
institution, maintenance and administra-
es a he boay Is tG secure ao po
tect it, and to furnish the individuals who
compose 1t with the power of enjoying in safety
ana tranquility their natural rights and the
blessings Of life. Without artificial heat very
few OF our inhabitants would have the power Of
enjoying these rights and blessings.
SO far, and SO far only, as it is a necessity of
society as now organized for the government to
supply fuel in order to afford an environment
which shall give this power, 1t is competent for
the government to furnish or to provide for a
supply. But it Is not within its constitutional
frad 10 70 of1,r
Tor the purpose OF having any branch of bust
ness conducted upon an economical or conven-
My answer to the question propounded is
therefore, yes. If the necessities of society as
now organized can be met only by the adoption
OF such measures, and no, if there is no such
necessity, but merely an expediency for the
trial OF an experiment.
Judge Barker's opinion, it seems to us,
most clearly sets forth the principles
involved in the question as to
what municipal corporations may
OF may not do which should
govern. 1t is not enough, says Judge
Barker in effect, in order to authorize
city to engage in a business to show that
the article which that city pro-
poses to deal in is one of general
necessity, or that the city can furnish
it more economically or conveniently.
1t must also be shown that there
exists a necessity for the city's engaging
in the business in order to promote the
general welfare. Judge Barker would
not probably go so far as to hold that the
necessity must be absolute, that is
that every other possible way of furnish
ing the needed article should have been
resorted to and shown to be hopeless be-
fore the city should be authorized to
supply it, but that there should be such
a condition of things existing as to rem
der it improbable that the thing would
be generally and properly supplied unless
the city supplied it. And just hereis the
distinction between the supplying of
water and light and the supplying of
coal. All are necessities, as Judge Holmes
points out, but coal is necessity that is
far more likely to be supplied by private
enterprise than light or water. Indeed
coal is certain to be supplied. But light
and water may or may not be supplied by
private enterprise. 1t depends upon
whether private enterprise thinks it can
make the business sufficiently remunera-
tive. The promotion of the public
health and the public convent
ence may, therefore, demand that the
municipality engage in the business of
furnishing light and water. That is, a
public necessity may exist to authorize
the city to engage in the water and light
business, but it is not likely to exist in
the MATTER of s,Inn1vi,,o noa1