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THE GREEN BAG
possible to have a trial before some other judge than the one especially interested. The fact that a short delay is possible gives an opportunity to summon a jury, and have it pass upon the question of fact. Many states by statute require this proceeding, and the same general considerations of justice which lead to a jury trial on the charge of crime also make it desirable to have one in such cases. This is so though the argument that other wise the person attached would be convicted of a crime without a jury is unsound. The process, in the large sense, is indeed a criminal one; but it is nevertheless not a proceeding for a technical crime. The person attached and punished for contempt may independently and thereafter be indicted and punished for the crime. As for contempt in violating an order or decree the situation is different. Where the process has not been modified so as to be no longer coercive, merely ceasing on obedience, Professor Beale thinks trial by jury not re quired by general principles of law or justice. and also not practicable. If, however, the the court inflicts a definite term of imprison ment by way of punishment, regular process and trial by jury should be required. TAXATION. " Public Purposes for Which Taxation is Justifiable," by Frederick N. Judson, Yale Law Journal (V. xvii, p'. 162). Short review of the doctrine that taxation can only be for public purposes and examina tion of the decision as to what are public purposes. "There is a new and distinct demand for a .great enlargement of the scope of govern mental activities through an assumption by the public of what have heretofore been dis tinctly private enterprises; that is, a sub stitution of public for private ownership. As to some of these, it must be admitted there is no distinct line of principle for determining of what shall be public and what private. Some cities in our countries have public water works, others have private. Some have pub
lic lighting, others private. Public libraries and public museums are now becoming rec ognized as a branch of public education, when they wer. poetically unknown a generation ago. Thus, in Great Britain, the telegraph is owned by the public, conducted as the postoffice is in this country; while in some of the continental countries the railroads are owned by the state. In some of the cities of Great Britain as well as on the continent, street rail roads are owned and operated by the public. On the continent of Europe it is recognized that public support of amusements is a legiti mate public function. In one or more states of this country the sale of liquor has been put under distinct public ownership and manage ment. "It is not within the scope of this paper to comment upon the wisdom of these extensions of governmental activities. It is sufficient to point out that there is no department of the law where its intimate association with, and its dependence upon the development of opinion are more obvious than in this question of the requirement of a public purpose of taxa tion. Our system of jurisprudence is based upon the doctrine of judicial precedent. Ours is a land as was our mother country where ' freedom broadens slowly down from precedent to precedent." Our courts in drawing the line between what is public and what is private in taxation and governmental expenditure, neces sarily look to what is sanctioned by time and the acquiescence of the people. Thus the supreme court of Massachusetts ... in deny ing the power of legislature to authorize towns to go into the business of buying and selling fuel, looked back several generations to determine what was the limit of govern ment activity at the time of the adoption of the Constitution. But on this subject more than on any other we must recognize that the law is a developing science. It jnust progress as civilization itself progresses, and the judicial view must tend to harmonize with the prevail ing and controlling enlightened public opinion .
