Page:Harvard Law Review Volume 5.djvu/47

CHECKS UPON MUNICIPAL ENTERPRISE. 3 1 railroad corporations and "public" grist-mills are proper objects of municipal aid. 1 It appears, therefore, that the true line of cleavage lies some- where between a cotton factory and a grist-mill. Talbot v. Hudson, 16 Gray, 417 (i860), Lowell v. Boston, in Mass. 454 (1873), and the Opinion of the Justices, 150 Mass. 592 (1890), when read together, are somewhat perplexing. The ground of decision in each of the first two cases appears to be flatly contradicted by the case itself which follows, and yet one may search the opinions in vain for any recognition of a conflict. Talbot v. Hudson held that a statute authorizing the abatement of a dam on Concord River for the relief of the meadows above was a valid exercise of the right of eminent domain, although the benefit to the owners of the meadows was individual and private, because " the incidental advantage arising from the development of the agricultural resources of so extensive a territory" was public (p. 425). Lowell v. Boston held that the Legislature could not authorize the city of Boston to lend money to the owners of land in the Burnt District for the encouragement of rebuilding, because " 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" (p. 461). In the course of his opinion Judge Wells expresses his approval of the judgment in Talbot v. Hudson and of the " general principle upon which it is founded," although it is clear that he has done his best to knock away the single prop, that of incidental public advantage, upon which that case was supported. The Opinion of the Justices holds that the Legislature may authorize cities and towns to manufacture gas and electric light for sale to their inhabitants. The learned justices refer with apparent approval to the proposition laid down in Lowell v. Boston: "The essential point is that a public service or use affects the inhabitants as a community and not merely as indi- viduals " (p. 595). Yet it seems quite clear that the sale of electric 1 Rogers v. Burlington, 3 Wall. 655; Olcott v. Supervisors, 16 Wall. 678; Otoe County v. Baldwin, 111 U. S. 1 ; Burlington v. Beasley, 94 U. S. 310; Blair v. Cuming County, in U. S. 363.