# State ex rel. State Reclamation Board v. Clausen > Washington Supreme Court · March 30, 1920 · 110 Wash. 525 URL: https://www.frixlaw.com/law-library/cases/4719890 ## Case - **Full name:** The State of Washington, on the Relation of the State Reclamation Board v. C. W. Clausen, as State Auditor - **Court:** Washington Supreme Court - **Decided:** March 30, 1920 - **Citations:** 110 Wash. 525; 188 P. 538; 14 A.L.R. 1133; 1920 Wash. LEXIS 554 - **Precedential status:** Published - **Opinion:** Dissent by MacKintosh - **Judges:** Holcomb, MacKintosh, Parker - **Cited by:** 36 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4719890 ## Opinion text Mackintosh, J. (dissenting)—As I gather the gist of my brother Parker’s opinion, it is that the court will not declare unconstitutional an act which calls for the collection of taxes to be'used in the purchase and improvement of lands to be sold to private individuals, for the reason that the legislature has decided that such taxation is for a public purpose. . Courts have found ¡this an easy way to justify the laying of taxes to be utilized in ways that appeal to them as beneficial or agreeable to their ideas of proper commercial or economic development. The purpose of the act may be highly commendable, and did it not call for the payment from the pockets of the taxpayer of money in the possession of which he is supposed to be protected by constitutional limitations, as a land development plan, it would merit the approval of those interested; but to call it a public purpose is to stretch to the breaking point all fundamental ideas of what is meant by that term. In Lowell v. Boston, 111 Mass. 454 , 15 Am. Rep. 39 , an act was declared unconstitutional which authorized Boston to -bond itself for $20,000,000, to be loaned to the owners of land, the buildings upon which had been destroyed by fire, for the purpose of rebuilding the city. Repayment was secured by mortgages. The court said: “The power of government, thus instituted to affect the individual in his private right of property whether by enacting contributions to the general means, or by sequestration of specific property, is confined, by obvious implication as well as by express terms, to pur *544 poses and objects alone which the government was established to promote, to wit, public uses and the public service. This power, when exercised in one form, is taxation; in the other, is designated as the right of eminent domain. The two are diverse in respect of the occasion and mode of exercise, but identical in their source, to wit, the necessities of organized society; and in the end by which alone the exercise of either can be justified, to wit, some public service or use. It is due to their identity in these respects that the two powers, otherwise so unlike, are associated together in the same article. So far as it concerns the question what constitutes public use or service that will justify the exercise of these sovereign powers over private rights of property, which is the main question now to be solved, this identity renders it unnecessary to distinguish between the two forms of exercise, as the same tests must apply to and control in each. An appropriation of money raised by taxation, or of property taken by right of eminent domain, by way of gift to an individual for his own private uses exclusively, would clearly be an excess of legislative power. ’ ’ In another portion of the same opinion it is said: “The power to levy taxes is founded on the right, duty and responsibility to maintain and administer all the governmental functions of the State, and to provide for the public welfare. To justify any exercise of the power requires that the expenditure which it is intended to meet shall be for some public service,, or some object which concerns the public welfare. 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. However certain and great the resulting good to the general public, it does not, by reason of its comparative importance, cease to be incidental. The incidental advantage to the public, or to the State, which results from the promotion of private interests, and the prosperity of private enterprises or business, does not justify their aid by the use of public money *545 raised by taxation, or for which taxation may become necessary. It is the essential character of the direct object of the expenditure which must determine its validity, as justifying a tax, and not the magnitude of the interests to be affected, nor the degree to which the general advantage of the community, and thus the public welfare, may be ultimately benefited by their promotion. The principle of this distinction is fundamental. It underlies all government that is based upon reason rather than upon force. It is expressed in various forms in the Constitution of Massachusetts.” See, also, Olcott v. Supervisors, 83 U. S. 678 ; Citizens’ Savings & Loan Association v. Topeka, 87 U. S. 655 ; State ex rel. Garrett v. Froehlich, 118 Wis. 129 , 94 N. W. 50 , 99 Am. St. 985, 61 L. R. A. 345; Auditor of Lucas County v. State ex rel. Boyles, 75 Ohio St. 114 , 78 N. E. 955 , 7 L. R. A. 1196; State ex rel. Walton v. Edmondson, 89 Ohio St. 351 , 106 N. E. 41 ; State ex rel. Griffith v. Osawkee Township, 14 Kan. 418 , 19 Am. Rep. 99 ; State ex rel. Garth v. Switzler, 143 Mo. 287 , 45 S. W. 245 , 65 Am. St. 653, 40 L. R. A. 280; City of Geneseo v. Geneseo Natural Gas, Coal, Oil, Salt & Mineral Co., 55 Kan. 358 , 40 Pac. 655 ; In re House, 23 Colo. 87 , 46 Pac. 117 , 33 L. R. A. 832; City of Baltimore v. Keeley Institute, 81 Md. 106 , 31 Atl. 437 , 27 L. R. A. 646; Mayor, etc., of Jersey City v. New Jersey R. Co., 78 N. J. L. 72, 73 Atl. 609 ; Fox v. Mohawk & H. R. Humane Soc., 165 N. Y. 517 , 59 N. E. 353 , 80 Am. St. 767, 51 L. R. A. 681; State ex rel. Board of Control of St. Louis School and Museum of Fine Arts v. St. Louis, 216 Mo. 47 , 115 S. W. 534 ; Feldman v. City Council of Charleston, 23 S. C. 63, 55 Am. Rep. 9 ; Aetna Fire Ins. Co. v. Jones, 78 S. C. 445, 59 S. E. 148 , 125 Am. St. 818, 13 L. R. A. (N. S.) 1147; Trustees of Brooke Academy v. George, 14 W. Va. 420 , 35 Am. Rep. 672 ; Minnesota Sugar Co. v. Iverson, 91 Minn. 30 , 97 N. W. 454 . *546 It is needless to prolong a discussion already too ambiguous. On principle, and under tbe authorities, I cannot agree that a public purpose is being served •by this attractive bit of paternalistic legislation, and therefore dissent. Mount, J., concurs with Mackintosh, J. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4719890. Public record. Not legal advice.