to one, or at most to a few persons or corporations. The pipes or wires must be laid in or over the public ways, or in or over land taken for the purpose, which may require the exercise of the right of eminent domain. These were some of the reasons why the subject seemed to the justices a proper one for municipal regulation and control, and to constitute a service which a municipality could be authorized to perform for itself and its inhabitants. But when the Constitution was adopted the buying and selling of wood and coal for fuel was a well-known form of private business, which was generally carried on as other kinds of business were carried on; and is now carried on in much the same manner as it was then. It was and is a kind of business which in its relations to the community did not and does not differ essentially from the business of buying and selling any other of the necessaries of life. Although all kinds of business may be regulated by the legislature, yet to buy and sell coal and wood for fuel requires no authority from the legislature, and requires the exercise of no powers derived from the legislature, and every person who chooses can engage in it in the same manner as in the buying and selling of other merchandise. We are not aware of any necessity why cities and towns should undertake this form of business any more than many others which have always been conducted by private enterprise, and we are not called upon to consider what extraordinary powers the Commonwealth may exercise, or may authorize cities and towns to exercise, in extraordinary exigencies for the safety of the State or the welfare of the inhabitants. If there be any advantage to the inhabitants in buying and selling coal and wood for fuel at the risk of the community on a large scale, and on what has been called the co-operative plan, we are of the opinion that the Constitution does not contemplate this as one of the ends for which the government was established, or as a public service for which cities and towns may be authorized to tax their inhabitants. We therefore answer the questions in the negative. WALBRIDGE A. FIELD. MAY 7, 1892. To the Honorable the House of Representatives of the Commonwealth of Massachusetts. I am of opinion that when money is taken to enable a public body to offer to the public without discrimination an article of general necessity, the purpose is no less public when that article is wood or coal than when it is water, or gas, or electricity, or education, to say nothing of cases like the support of paupers or the taking of land for railroads or public markets. I see no ground for denying the power of the legislature to enact the laws mentioned in the questions proposed. The need or expediency of such legislation is not for us to consider. OLIVER WENDELL HOLMES, JR. To the Honorable the House of Representatives of the Commonwealth of Massachusetts. In reply to the questions submitted by your order of April 12, 1892, for the opinion of the Justices of the Supreme Judicial Court, I have to say that under our Constitution "The end of the institution, maintenance, and administration of government is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquillity 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, it is competent for the government to furnish or to provide for a supply. But it is not within its constitutional power to engage in trade or manufacture merely for the purpose of having any branch of business conducted upon a convenient or economical plan. Fuel is now legitimately furnished to paupers by towns and cities at the public expense. If there is an emergency, local or general, which cannot be adequately met by ordinary private agency, it is within the constitutional power of the government to supply the needs of the people in this respect, either through the towns and cities, or through other agencies. The question of the exigency, in the first instance, is for the legislature. If there is no adequate source of supply of fuel except through the establishment of governmental agencies, they may be lawfully inaugurated. If, on the other hand, there is no want of adequate service, the legislature has no constitutional right to create agencies for the purpose. It has no right to authorize towns and cities to engage in trade merely to try an experiment in practical economics, or to put in practice a theory. My answer to the questions 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."1 JAMES M. BARKER. 1 The non-judicial character of such opinions should be remembered. See ante, 156, 175. - ED. Quo warranto. STATE v. CITY OF TOLEDO. SUPREME COURT OF OHIO. 1891. ... On the 22d day of January, 1889, the General Assembly passed an Act which reads as follows: "An Act to authorize cities of the third grade of the first class to borrow money and issue bonds therefor for the purpose of procuring territory and right of way, sinking wells for natural gas, purchasing wells and natural gas works, purchasing and laying pipes, and supplying such cities with natural gas for public and private use and consumption." . . . [The city of Toledo under this Act issued bonds and applied the proceeds to the purposes named above.] This proceeding in quo warranto is instituted in this court to oust and exclude the city of Toledo from any and all authority to have, use, and enjoy the liberty, privilege, and franchise of issuing and selling said bonds and devoting the proceeds towards the prosecution of said enterprise of supplying natural gas, on the alleged ground- fully set forth in the opinion of the court that the said Act of January 22, 1889, is in conflict with the Constitution of this State, and therefore invalid and void in law. D. K. Watson, Attorney-General, Doyle, Scott, & Lewis, Thomas W. Sanderson, F. E. Hutchins, Frank H. Hurd, and E. D. Potter, Jr., for relator. W. H. A. Read, City Solicitor, Barton Smith, and Clarence Brown, for defendant. DICKMAN, J. . . . We are brought now to the question whether the authority given to Toledo and other cities to issue natural gas bonds, and levy taxes to pay them, was for a purpose of so public and general a nature as not to transcend the legislative power vested in the General Assembly. In holding that there can be no lawful tax which is not imposed for a public purpose, the line of demarcation is by no means clear and distinct and well defined between what is for public and what for private purposes. It would be exceedingly difficult to lay down any general principle, or construct any formula, by which each case as it arises may be assigned to the one or the other side of the line. There are, however, certain objects, the promotion of which, by reason of their being treated as of general necessity, has been decided to be a public use or purpose. Thus it is now the well-settled doctrine throughout the several States that the business of public highways, turnpikes, bridges, canals, and other public means for travel and for the transportation of goods are a public use within the Constitution. The objects and business of aqueduct and water-works companies for the supply of cities and their inhabitants with water are a public use. Reddall v. Bryan, 14 Md. 444; Burden v. Stein, 27 Ala. 104; Lumbard v. Stearns, 4 Cush. 60; Mayor, etc. v. Bailey, 2 Denio, 433, 452, per GARDINER, P. The sewerage of a city is also held to be a public use. Hildreth v. Lowell, 11 Gray, 345. Land taken in a city for public parks and squares, by authority of law, whether advantageous to the public for recreation, health, or business, is deemed to be taken for a public use. In re Commissioners of Central Park, 63 Barb. 282. And in Bloomfield, etc. Natural Gas Light Co. v. Richardson, 63 Barb. 437, the corporation undertook to conduct the natural gas flowing from a gas spring or well to the city of Rochester, a distance of about 30 miles. The case, it is true, involved the right of eminent domain, and not taxation, but in a proceeding to acquire the right of way for its mains through the lands of private owners, and to appoint commissioners of appraisal, it was held that the purposes, object, and business of the corporation were a public use within the meaning of the Constitution. In the present controversy the object proposed is to supply the city and the citizens of Toledo with natural gas "for public and private use and consumption." The terms employed to define the object are comprehensive. Whether for fuel or as an illuminant, the design is to furnish gas for all public buildings, and for the private consumption of the community at large. The expense of the undertaking is not to be incurred in behalf of a favored class of citizens, or to foster certain branches of industry, but for the benefit of all the inhabitants of the city. If natural gas is thereby made cheap, or cheaper than before, to consumers, such an advantage will inure to any and all who may avail themselves of the privilege of using it. Nor does their use of it necessarily imply taxation for the payment of the principal and interest of the bonds issued by the municipality, as the income derived from the consumption of natural gas might prove fully adequate to such payment. Water, light, and heat are objects of prime necessity. Their use is general and universal. It is now well settled that the legislature, in the exercise of its constitutional power, may authorize cities to appropriate real estate for water-works; and levy and assess upon the general tax-list an assessment on all taxable real and personal property in the corporation for the payment of the cost and repair of such water-works; and for the purpose of paying the expenses of conducting and managing the works a water-rent may be assessed upon all tenements and premises supplied with water. And yet, in cities and towns where there are public water-works, there are often large numbers of the inhabitants who do not connect their dwellings or business establishments with the water-pipes laid in the streets, and who rely for their supply of water upon the ordinary methods and sources. They are taxed, nevertheless, for the construction of works of which they may have no immediate need to avail themselves; but such works meet the wants of the rest of the community. And as a protection from fire, as a means for the preservation of health, to supply an article of convenience and necessity to the great body of the citizens, for domestic uses, for operating manufacturing establishments, for heating VOL. I. 58 houses, for generating steam in all its varied applications, municipalities incur debts and levy taxes for constructing and maintaining expensive water-works. The benefits and conveniences offered may not be embraced by all, but they are, notwithstanding, designed for the general advantage, and subserve what is recognized as a public purpose. The city in its corporate capacity does that for the citizen which he could never accomplish by his individual effort, and leaves it to his option to accept or dispense with the privilege offered. What we have said in reference to water-works is, for the most part, applicable to the erecting and maintaining of natural or artificial gas works. In State v. City of Hamilton, 47 Ohio St. 52, the city issued its bonds for the purpose of erecting artificial gas-works, and furnishing the public lighting for the city. This court held in that case that the city was empowered to erect its own gas-works at the expense of the corporation. It did not become necessary to decide whether, by virtue of the sections of the Revised Statutes then under consideration, the city would be authorized to construct its own gas-works, and furnish gas to the inhabitants for private consumption. That question has been argued in the case at bar by relator's counsel in State v. City of Hamilton, now pending in this court, on brief filed in the last-entitled case. But, as throwing light upon the present investigation, and as an authority entitled to the highest respect we must acknowledge the force of the language used in Opinion of the Justices of the Supreme Court to the House of Representatives, 150 Mass. 592, 597. In rendering the opinion that the legislature has the power under the Constitution to authorize the cities and towns within the Commonwealth to manufacture and distribute gas or electric light for use in their public streets and buildings, and for sale to their inhabitants, it is said: "If gas or electricity is to be generally used in a city or town it must be furnished by private companies or by the municipality, and it cannot be distributed without the use of the public streets, or the exercise of the right of eminent domain. . . . If the legislature is of opinion that the common convenience and welfare of the inhabitants of cities or towns will be promoted by conferring upon the municipalities the power of manufacturing and distributing gas or electricity for the purpose of furnishing light to their inhabitants, we think that the legislature can confer the power." Heat being an agent or principle indispensable to the health, comfort, and convenience of every inhabitant of our cities, we do not see why, through the medium of natural gas, it may not be as much a public service to furnish it to the citizens as to furnish water. It is inquired, why do not municipalities also purchase coal mines, and issue their bonds therefor, and embark in the business of mining and selling coal to private consumers? An obvious reply is that coal and other fuel may be carried to the consumer by the ordinary channels of transportation, and at comparatively, moderate expense, while, in conveying natural gas, streets must be opened, pipes laid, works erected, fixtures |