Page:Harvard Law Review Volume 12.djvu/519

NOTES. 499 without the receipt could not enforce it. The bank might pay either but need pay, neither, — a complete deadlock. In the principal case the bank did in fact break that deadlock by paying to the donee, so that even according to Edwards v. yones the bill must have been dismissed ; but the opinion, by Mr. Justice Byrne, departed radically from the doc- trine of that case. He decided that the delivery of the instrument, with the power of attorney upon it, was a final and complete assignment of the obligation because the power of attorney was not in the nature of a power revocable by death, and because, even if that were not sound, the appointment of the donee as executor confirmed the gift. It is difficult to see the rationale of the second ground, why what was not a gift should become a gift because of a subsequent irrelevant appointment, but the first ground is clearly inconsistent with Edwards v. Jones. That case, it is true, is not referred to, but Fortescue v. Barnett 3 Myl. & K. 36, which it is supposed to have overruled, and Re Patrick., [1891] x Ch. 82, which seemed willing to differ with it, are vaguely approved. The whole expres- sion of the opinion is tentative, not perhaps always clearly perceived, but it is by far the most satisfactory decision in the English law on the subject. The Public Purposes which Justify Taxation. — The line between lawful taxation and unconstitutional robbery is not over clear. Whether a collection under guise of a tax is one or the other depends on whether the sum is raised for a public purpose, and what constitutes a public purpose the conflicting authorities make it hard to say. That, in the first instance it is the legislature's duty to judge whether the purpose is public no one doubts. That the courts should overrule this expression of judg- ment only in cases of clear mistake is equally settled. Where the expen- diture will benefit the public directly if at all the taxes are held valid, unless it appears to the courts that the legislature could not reasonably have considered the object public. Where, on the other hand, the im- mediate effect of the outlay is individual advantage, though great public benefit is sure to result indirectly, the courts are less scrupulous in giving weight to the legislative judgment. In 1873, ^^ case of Lowell et al. v. Boston, m Mass. 454, held that a tax could not be raised to help the sufferers rebuild after the great fire, though the loans would have resulted in benefit to the whole State. This case is the foundation of a rule which has been laid down by many courts, that, however great the ultimate public good, if the outlay is in the first instance for individual benefit the purpose is not public and will not justify taxation. A recent decision approving the rule throws light on its character and on the way it is enforced. Deering &- Co. v. Peterson, 77 N. W. Rep. 568, decided by the Minnesota Supreme Court. Here the legislature author- ized loans to farmers whose crops had been destroyed by storms, with the purpose of enabling them to buy seed grain for the coming season. A commission was to hear applications and give aid in their discretion, but no one owning more than 160 acres of unincumbered land could have relief. The case might have gone on another ground, but the court held the act unconstitutional, because the purpose was private, and they cite Lowell V. Boston to sustain this position. In the next breath, however, they say that were the case like State v. Nelson County, i No. Dak. 88, — were the grain loans necessary to keep great numbers of citizens from be- 65