Page:Harvard Law Review Volume 5.djvu/49

33 CHECKS UPON MUNICIPAL ENTERPRISE. 33 the power of forcible appropriation could be invoked there must appear to be some necessity for its exercise. Chief Justice Cooley said in that case: "We are not disposed to say that the incidental benefits to the public would not under any circumstances justify the exercise of the right of eminent domain. The rules which underlie taxation do not necessarily govern the case. Taxation is for those purposes which properly and legitimately are designated public purposes ; but the authority of the State to compel the sale of individual property for the use of enterprises in which the interest of the public is only to be subserved through conveniences supplied by private corporations or individuals, has been too long recognized to be questioned." The distinction here suggested seems reasonable. If it had been taken by the court in Lowell v. Boston, much trouble might have been avoided. The right of the state to grant a location to a cor- poration for which the corporation must pay, and its right to sub- sidize that corporation, do not seem to be necessarily coextensive in principle, and, as juries go now-a-days, they certainly are not the same in effect. Since it is now settled that a town may be authorized to sell water, gas, and electric light to such of its individual householders as see fit to buy, it is evident that the individuals who make up the community cannot be distinguished from the community in its collective capacity, for the purpose of fixing the limits of taxation. But if a town may sell water and electric light to its inhabitants, why not bread? Is not bread quite as necessary for the "com- fortable living of every person" as artificial light? Upon what ground shall it be said that the Legislature may not empower towns and cities to deal in all sorts of commodities which its citizens may need? There seems to be no tenable ground of distinction, except that suggested by Judge Cooley in regard to the exercise of the right of eminent domain; namely, necessity. The right of the town to perform a given service for its several inhabitants for which its inhabitants severally pay, depends not upon the nature of the thing supplied, nor upon the universality of its use, but upon the mode of supply; upon the economical necessity for organization and system in the performance of the service. The very object of municipal organization is to perform those services for the common benefit, for which organization of some sort, if not political, then voluntary, is necessary. The 3