Albritton v. City of Winona , 181 Miss. 75 ( 1938 )


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  • CONCURRING OPINION.
    We all agree that, when a challenged statute is susceptible of a construction which will bring it within the Constitution, the duty of the court is to put that construction upon it, and thereupon to sustain it. Looking at the statute, here in question, in the light of that principle, I concur in the result reached that (1) the act is constitutional and (2) that the acquisition, and the proposed lease, of "a hosiery, knitting and wearing apparel manufacturing plant," is within constitutional allowance, provided the terms of the lease shall vest in the public authorities the ultimate control as regards the employment of the labor in said plant. But in my judgment the opinion as written by the Chief Justice goes too far as respects the grounds upon which the act is sustained, and not far enough in regard to the terms of the proposed lease. For that reason, and also because there is a dissent, it becomes my duty to briefly state my views, matured as a result of an examination of the entire field of the authorities on the subject.

    One of the purposes expressed within the act is the alleviation of unemployment. From the earliest times in our history it has been regarded as a public purpose, and within the power of direct taxation, to keep the poor from starvation. Cooley's Constitutional Limitations (8 Ed.), 1026. Ordinarily, a man will break in and take before he will starve, and all will do this for their families. They will do so singly and in groups. Thus the public duty and purpose to furnish food and necessaries to the famished is traceable directly to the police power of the state. And since in such cases the state, or its authorized subdivisions, may afford direct relief or aid of money or supplies, or both, it may provide work, and if to do so it become necessary to enter within the confines of that which has always heretofore been considered the *Page 114 domain of private enterprise, nevertheless the legislative power may so direct, under the established principle that whenever there is a constitutional power to accomplish a certain object the power includes, by implication, the authority to avail of all the necessary and proper means for the accomplishment of the particular object. Brister v. Leflore County, 156 Miss. 240, 248,125 So. 816.

    But when it is said that, without express constitutional provision to that effect, the field of private enterprise, the domain of the general manufacturing business, may be directly entered as a public purpose because, and because only in so doing, other businesses and other occupations will be incidentally benefited and thereby the public welfare promoted, this, I think, goes too far and has no support in any adjudicated case in this country and is against the fundamentals of a free constitutional system. No authoritative case can be found where this has been allowed, except where the state itself not only owned the facilities but actually managed and operated them, — as was the case, Green v. Frazier, 253 U.S. 233, 40 S.Ct. 499, 64 L.Ed. 878, and as is the case of our penitentiary system of which mention has been made.

    In Citizens' Savings Association v. Topeka, 20 Wall. 655, 665, 22 L.Ed. 455, the court, after saying that aid by taxation to any class of manufactures, not public in their nature, is not a public purpose, went on to observe: "If it be 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. . . . 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 this brief quotation from our highest court there is pointed out the insuperable difficulty, the insurmountable obstacle, if our constitutional system is to be preserved, *Page 115 in holding that, merely because the establishment of manufacturing or industrial enterprises will promote the public good or will benefit other occupations, this may be done by the state or its subdivisions, upon a legislative declaration of a public purpose; for, so to hold is to throw the door wide open to take over the wholesale and retail merchantile business, or the farms, or the publishing business, including the public newspapers, or any other business, and to establish a communistic or soviet state, or else embark upon a boundless and uncharted sea without rudder or compass.

    But in the matter of unemployment, and confining the problem to that purpose alone, a tangible line may be drawn. We know from public statistics that the average of unemployment has run throughout several past years at about 10 per cent. of the total population; and because of new inventions, past and future, we can well estimate that the percentage of unemployment, if private employment alone is looked to, will continue throughout the years which are to come, at about or not less than 10 per cent. Up to that percent there is an ascertained and well-defined obligation upon the public in respect to this unemployment problem; and in this connection it is to be noted that the act here in question limits the amount which may be invested in these industrial enterprises at 10 per cent. of the assessed valuation of all the taxable property.

    Since the field of industrial enterprise, or the domain of the general manufacturing business, may be entered as a public purpose for the alleviation of unemployment, but for that object only, there comes into operation here, and unavoidably so, the principle that public money raised by taxation for the benefit of the indigent or unemployed must be spent under the direction and control of the public authorities. It cannot be turned over to a private agency to do with it as that agency may please. All the authorities everywhere are to that effect. It *Page 116 was expressly and distinctly so held in Miller v. Tucker,142 Miss. 146, 105 So. 774, 780. Whence it follows that when a manufacturing establishment, such as here proposed, is furnished by taxation for the alleviation of unemployment, — and that, as I maintain and repeat, is the only constitutional ground upon which such an establishment may be so furnished, — the operations, as to employment therein, must in a reasonable measure be under the control of the public authorities, as regards who shall be employed, and as to minimum wages, and maximum hours of work, else the operation will not be public but will be private, and cannot be aided through the means of taxation.

    Unless the lease carry the necessary provisions in respect to employment as indicated in the foregoing paragraph, the only other constitutional method by which the property could be leased would be at its full, fair market rental value after an honest and deliberate effort to obtain such value, for there nothing of monetary value would be donated to the lessee. But, if the lease be at a reduced rate or price as compared with the fair market value, and do not carry the provisions for ultimate control of the employment features as above mentioned, there would be a donation or gratuity pro tanto in manifest conflict with sections 183 and 258, Constitution 1890, to say nothing of the due process section.

    The opinion in chief does not commit the judges, who speak thereby, upon this question of the essential outlines of the proposed lease. It says that it will be presumed that the municipal officers and the commission will take care that the provisions of the lease will meet the requirements of the statute. What they must do is to see that those provisions will meet the requirements of the Constitution. It is true, as a general rule, that in passing upon the constitutionality of a statute courts will not by anticipation decide upon the details of an additional step proposed to be taken but not yet *Page 117 taken, if the step be such that in its details it will be within the Constitution when it is taken. But here we have a bond validation proceeding which, when affirmed, renders the bonds incontestable, whatever may subsequently happen. Before this bond money is allowed to be spent, the municipal authorities, the commission, and the protective lessee or lessees should know at least in general outline whether such a lease as they are willing to make would be approved by this court. The issue of the character of the lease that may be made is fairly before us and it ought to be decided now, else the matter is left in such a state of uncertainty in that regard that it may be that none but the boldest or most irresponsible lessee would offer to undertake the blind venture, and that an empty and idle plant would stand as the mournful result of the taxpayers' money that has been spent.

Document Info

Docket Number: No. 33074.

Citation Numbers: 178 So. 799, 181 Miss. 75

Judges: <bold>Smith, C.J.,</bold> delivered the opinion of the court.

Filed Date: 2/7/1938

Precedential Status: Precedential

Modified Date: 1/12/2023