the case above referred to has held the bounty provision of the McKinley Act unconstitutional. This decision of the court seemed to require a full examination of the question; hence the present inquiry.

Co. v.

2. That decision (United States ex. rel. The Miles, etc., Carlisle and Miller, 23 Wash. Law Rep., 33) was upon a petition for a writ of mandamus to compel the Secretary of the Treasury and the Commissioner of Internal Revenue to carry out the rules and regulations made for the execution of the sugar bounty provisions of the McKinley Act.

It was held, first, that the bounty clause of the McKinley Act had been repealed by the act of August 28, 1894, known as the Wilson Act, and, second, that the sugar bounty clause was unconstitutional. This latter point was principally founded upon the decisions of the Supreme Court of the United States In Loan Association v. Topeka (20 Wall., 655); Parkersburg v. Brown (106 U. S., 487), Cole v. La Grange (113 U. S., 1), and numerous opinions of various State courts upon questions analogous to those decided in the three cases above cited, many of which had been approved by the Supreme Court of the United States in the opinions rendered in those cases.

The principle decided in all these cases is, succinctly stated, that taxation must be for a public purpose; that an attempt to take money from the people by the forms of taxation for a purpose other than a public one is not an exercise of legislative power, and, therefore, that an attempt to do so is a mere nullity as an effort by the legislature to exercise power not granted by the Constitution.

While this principle was not controverted by the counsel of the sugar claimants, it was contended that this bounty could be sustained under paragraph 1, section 8, article 1 of the Constitution, which is as follows:

"The Congress shall have power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, aud excises shall be uniform throughout the United States."

The extent of this clause was the subject of considerable discussion for the first few decades under the Constitution, and its scope does not ever seem to have been determined by the Supreme Court, for no case has been found upon which an act has been sustained exclusively under that clause.

While it is generally conceded that the words "to pay the debts and provide for the common defence and general welfare of the United States" do not constitute an independent, substantive grant of power, but are simply qualifications upon the previous grant "to lay and collect taxes, duties, imposts, and excises," yet it has been claimed, on the one hand, that the power to tax for the purposes thus specified is limited to raising the means to carry out the other powers subsequently enumerated, and does not authorize the levying of taxes for any other purposes; on the other hand, it is claimed that the power to tax is not so limited but extends to any purposes which are for the general welfare.

The words "common defence" and "general welfare” are not found in any other clause of the Constitution, but are contained in the preamble as some of the objects to accomplish which the Constitution was established. As the objects to be accomplished by the Constitution can only be carried out by the exercise of the powers therein granted, a like construction would require these words, as used in the clause "to lay and collect taxes," to be considered as referring to the powers subsequently enumerated and to be limited to the carrying out of these powers by means of taxation. Such undoubtedly was the view once generally held. It is claimed, however, that it became subsequently modified, reliance being placed upon certain acts of Congress and the opinion of Mr. Justice Story (Const., sec. 991), and President Jackson's veto of the Maysville road bill (4 Elliott's Debates, 2d ed., Wash., 1854, pp. 525, 526), where he reviews this question quite fully, and other public documents.

But whatever may be the correct view of this clause it can not confer a broader power upon Congress than a similar clause would confer upon a State legislature, nor greater power than that which a State legislature would have under a constitution containing no prohibition upon the legislative power. The constitutions of Maine and Massachusetts both contain clauses similar to this clause of the Federal Constitution, and in cases decided by the courts of those States, as well as States having general legislative power, it has been held, as will be shown hereafter, that bounties similar to the sugar bounties can not be sustained as a proper exercise of the taxing power for a public purpose. To show that taxation must be exclusively for public purposes a few quotations from decided cases may not be inappropriate.

Mr. Justice Miller. in Loan Association v. Topeka (20 Wall., 655), said (on pp. 664, 665):

"To lay with one hand the power of government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation; it is a decree under legislative forms. Nor is it taxation. We have established, we think, beyond cavil, that there can be no lawful tax which is not laid for a public purpose. It may not be easy to draw the line in all cases so as to decide what is a public purpose in this sense and what is not.

But in the case before us, in which the towns are authorized to contribute aid by way of taxation to any class of manufacturers, there is no difficulty in holding that this is not such a public purpose as we have been considering. If it is said that a benefit results to the local public of a town by establishing manufactures, the same may be said of any other business or pursuit which employs capital or labor. The merchant, the mechanic, the innkeeper, the banker, the builder, the steamboat owner are equally promoters of the public good and equally deserving the aid of citizens by forced contributions. No line can be drawn in favor of the manufacturer which would not open the coffers of the public Treasury to the importunities of two-thirds of the business men of the city or town."

In Cole v. La Grange (113 U. S., 1) Mr. Justice Gray said (on p. 6):

"The general grant of legislative power in the constitution of a State does not enable the legislature, in the exercise either of the right of eminent domain, or of the right of taxation, to take private property, without the owner's consent, for any but a public object. Nor can the legislature authorize counties, cities, or towns to contract, for private objects, debts which must be paid by taxes. It can not, therefore, authorize them to issue bonds to assist merchants or manufacturers, whether natural persons or corporations, in their private business. These limits of the legislative power are now too firmly established by judicial decisions to require extended argument upon the subject."

Numerous other quotations might be made, but they are unnecessary, for, as stated by Mr. Justice Gray in Cole v. La Grange, supra, "We have been referred to no opposing decision," and it is believed that no such decision can be furnished.

From these cases and others referred to by Judge Shepard in the opinion in the Miles case the court reached the following conclusion:

"We think the authorities cited above establish beyond

question that the power of taxation, in all free governments like ours, is limited to public objects and purposes govern mental in their nature. No amount of incidental public good or benefit will render valid taxation, or the appropriation of revenues to be derived therefrom, for a private purpose.”

The last sentence of this quotation was severely criticised by the counsel of the sugar bounty claimants, and was put in contrast with the language of Judge Black in Sharpless v· Mayor, etc. (21 Pa. St., 147), that—

"The tax laid must be held valid unless it be for a purpose in which the people taxed have palpably no interest; where it is clearly apparent that the burden imposed is for the benefit of others, and where it would be so pronounced at first blush." And the language of Judge Dixon in the case of Brodhead v. Milwaukee (19 Wis., 624-652) that

"The object for which money is raised by taxation must be public, and such as subserves the common interest and wellbeing of the community required to contribute. To justify the court in arresting the proceedings and declaring the tax void, the absence of all possible public interest in the purposes for which the funds are raised must be clear and palpable-so clear and palpable as to be perceptible to every mind at the first blush.'

Rightly understood, Judge Shepard's language does not conflict with that above quoted from the opinions of Judge Black and Judge Dixon.

The distinction between a public interest or benefit and a public purpose, and between a private interest or benefit and a private purpose, must be kept in mind. No degree of public interest or benefit, no matter how large, will justify a tax for a private purpose, while the highest degree of private interest or benefit will not defeat a tax for a public purpose. This distinction is clearly drawn out in numerous cases.

In Lowell v. City of Boston (111 Mass., 454) it is said (on p. 461):

"The promotion of the interests of individuals, either in respect of property or business, although it may result incidentally in the advancement of the public welfare, is, in its essential character, a private and not a public object. However certain and great the resulting good to the general public, it does not, by reason of its comparative importance, cease to be incidental. The incidental advantage to the public, or to the State, which results from the promotion of private interests, and the prosperity of private enterprises or business, does not justify their aid by the use of public money raised

It is

by taxation, or for which taxes may become necessary. the essential character of the direct object of the expenditure which must determine its validity, as justifying a tax, and not the magnitude of the interest to be effected, nor the degree to which the general advantage of the community, and thus the public welfare, may be ultimately benefited by their promotion. The principle of this distinction is fundamental. It underlies all government that is based upon reason rather than upon force."

In Curtis's Administrators v. Whipple (24 Wis., 350) it was said by Judge Dixon, the same judge who delivered the opinion in Brodhead v. Milwaukee, supra (p. 355):

"Any direct public benefit or interest of this nature, no matter how slight, as distinguished from those public benefits or interests incidentally arising from the employment or business of private individuals or corporations, will undoubtedly sustain a tax."

In Niagara Falls and Whirlpool Railroad Company (108 N. Y., 375) it was said (on p. 385):

"What is a public use is incapable of exact definition. The expression public interest and public use are not synonymous. The establishment of furnaces, mills, and manufactures, the building of churches and hotels, and other similar enterprises, are more or less matters of public concern, and promote, in a general sense, the public welfare. But they lie without the domain of public uses for which private ownership may be displaced by compulsory proceedings."

The case being one where the exercise of the right of eminent domain was sought to be enforced.

The whole matter is admirably summed up by Judge Cooley in The People v. Salem (20 Mich., 452, on p. 485):

"We perceive, therefore, that the term public purpose, as employed to denote the objects for which taxes may be levied, has no relation to the urgency of the public need, or to the extent of the public benefit which is to follow. It is, on the other hand, merely a term of classification, to distinguish the objects for which, according to settled usage, the Government is to provide, from those which, by the like usage, are left to private inclination, interest, or liberty."

What is a public purpose is not always easy of ascertainment, the line between a public and a private purpose not always being clear. Attempts to aid by gifts of the public funds enterprises of various kinds have been defeated by the courts in cases holding such gifts not to be for a public but for a private purpose. Manufacturing establishments have 11268-VOL 2-8