Page:Harvard Law Review Volume 12.djvu/348

328 328 HARVARD LAW REVIEW, And in Freeland v. Hastings : — ^ " A statute conferring such power would be obnoxious to the objection that it authorized the raising of money by taxation for the exclusive benefit of particular individuals; that it . . . appropriated money for a private purpose which could only be raised and used for public objects. It is hardly necessary to say that a statute designed to accomplish such pur- poses would be against common right, and would transcend the authority conferred on the Legislature by the Constitution." It is interesting to test the above gratuitous grants by this stand- ard. Hardly one can be said to be constitutional. There can be no doubt but that the State has relieved many cases of hardship and suffering; but hardship is no test of the propriety of a law or of taxation. It is just as great a hardship to the individual tax- payer to be obliged to contribute his money to be expended to relieve the suffering of some other individual. It is not the duty of the State to play the part of philanthropist If a member of the militia or if any other servant of the State is injured in the course of duty, that is hard for him ; but why should the State pay for it? It is no harder for him than for any private person who is injured in the course of his business. It is no more incumbent on the State to pay its employees for such injury than to pay any other individual. There can certainly be no justice in allowing a man to recover damages from the State in cases where there would have been no legal liability had the injury been inflicted by the servants of a pri- vate person ; that is, in cases where the injury was a mere accident, or one not caused by the negligence of any State employee. What reason, for instance, can be given for paying a man money simply because he happened to be struck by lightning while mowing the State camp ground P^ Why should the State pay for mere acci- dents, unless it is going into the business of accident insurance? Such gratuitous payments may be kind and philanthropic to the individual suffering, but they are entirely unconstitutional, and unjust to the mass of taxpayers. Nor are the payments which have been made for injuries sus- tained by others, and due to the negligence or fault of State em- ployees, proper or legal as the law now stands. This leads to the second objection. If the Legislature thinks that the State should be legally liable 1 lo Allen, 589. 2 J891, ch. 20.