By agreement of parties, the sole question for decision is the validity of the tax sought to be collected in this proceeding. The defendants contend, not only that the tax is not authorized by law, but that its assessment is expressly forbidden by legislative enactment. They are a fire district, — a municipal subdivision of the state, — organized under the general law and embracing a portion of the territory of the town of Enfield. In 1903, they applied to and secured from the legislature authority to construct and maintain suitable water-works for the purpose of distributing throughout the district an adequate supply of water for extinguishing fires and for the use of the citizens. Laws 1903, c. 221.
The first question raised is the interpretation of this act: whether it does or does not disclose a legislative intent to exclude the property taxed from the operation of the tax laws of the state. Prior to the passage of the act, the district had purchased the land in the town of Canaan which it has been attempted to subject to *Page 533 the tax in question. Section 4 of the act expressly ratifies and confirms "the purchase of real estate and water rights already made by said fire district"; and as ratification is equivalent to prior authority, it would seem beyond question that the defendants' ownership of the real estate and water rights in Canaan was within the authority conferred upon them and was lawful. Section 4 also provides that "all the property of said fire district used in the construction and operation of its water-works shall be exempt from taxation."
Under the statutory definition of the word "town" (P. S., c. 2, s. 5), the defendants are exempted by general law from taxation upon their real estate used for public purposes, which would appear to include the water-works. P. S., c. 55, ss. 2, 3. But in Newport v. Unity, 68 N.H. 587, upon consideration of the various provisions of the statutes relating to the taxation of town property held for public purposes, it was determined that the legislative intent, as evidenced by the statutory expressions applicable to that case, was that property owned by one town and held for public water-works, if situated in another town, should be taxable in the town where it was situated; and therefore, unless exempted by the special statute relied upon, this water-works property was liable to be taxed. At the time of that decision Concord had been specially authorized to own real estate and water rights in the towns of Boscawen, Webster, and Hopkinton (Laws 1891, c. 261; Laws 1895, c. 180), and had been by the enabling act perpetually exempted from taxation on "all property, real and personal, owned and used by said city in the operation of said water-works outside the limits of said city." Laws 1891, c. 261, s. 6. The Whitefield Village Fire District was also authorized to hold property for water-works purposes in the adjoining town of Jefferson, and said water-works, "with all extensions thereof," were exempted from taxation (Laws 1893, c. 167, ss. 4, 10); while Manchester had been authorized to take or purchase land in Auburn (Laws 1891, c. 26, s. 2), Exeter, in Stratham (Laws 1893, c. 220), Dover, in Rollinsford, Somersworth, and Madbury (Laws 1889, c. 170), Somersworth, "outside of said town of Somersworth" (Laws 1891, c. 143), and Ashland, in New Hampton (Laws 1895, c. 195), without any provisions as to taxation. The force of this decision therefore was, that in the absence of express language excluding property of this character from taxation, the legislature intended it should be taxed. The soundness of the decision in Newport v. Unity is now questioned, but no effort has been made to change it by legislative action. There is no evidence that any legislation has been adopted upon the theory that this decision was erroneous. Subsequent legislation *Page 534 must therefore be interpreted as adopted with the understanding that this decision correctly construed the general statute law. Whether the decision is sound or not, is immaterial upon this branch of the case. Since the decision was announced in July, 1896, there have been numerous enactments relating to water-works construction and operation by towns and districts. In some express authority is given to hold property beyond the territorial limits of the town or district; in others such power may be inferred from the general language used, as in Newport v. Unity. Some have been expressly confined in their operation to town limits. A few contain express exemptions from taxation. It is unnecessary to refer to these enactments in detail.* They establish a legislative judgment, that in some cases property of this character, owned and situated as this is, ought not to be included in the list of taxable property. Taking into consideration this understanding, the language conferring the power to take and hold real estate and water rights identical with that held in Newport v. Unity to authorize the holding of real estate in another town (Laws 1895, c. 169, s. 1), and the fact that the property had been purchased when the act was passed and that all such purchases previously made were ratified and confirmed by the act, it seems clear that the legislature must have intended by the clause, "all the property of said fire district used in the construction and operation of its water-works shall be exempt from taxation," to remove this property from the list of taxable estate. As the legislature did not intend this property should be taxed, *Page 535 legislative authority for the imposition of the tax appears to be wanting.
But the plaintiffs contend that nevertheless the property must be taxed, because (1)the town of Canaan has either a constitutional right, or a right prior or superior to the constitution, in its corporate capacity to tax all property within its territorial limits; (2) because if this property is not taxed, the other Canaan taxpayers will in effect be compelled to contribute the amount it should be taxed toward the maintenance of the Enfield waterworks, and such enforced contribution violates provisions requiring uniformity and equality in taxation; (3) because the act is special as to the Enfield water-works, and has not general application to all municipal water-works property similarly situated. None of these considerations will support the tax in question.
First, as to the constitutional or corporate right of Canaan to tax all property within its limits. There is no such right. The case is confused by the fact that the town of Canaan appears as plaintiff. To the eye, at least, the action appears to be a controversy between the two municipalities, and to involve necessarily a right of one against the other. The right claimed is not one of corporate power, governmental or proprietary, but of the exercise of the taxing power, — "an incident of the highest sovereignty," which "resides in government as a part of itself." Phillips Academy v. Exeter, 58 N.H. 306, 307; Cool. Tax. 479; Cool. Con. Lim. 3. "The power of taxation is an attribute of sovereignty belonging to the people; and this power, so far as it has been granted at all, has been delegated under our constitution to the legislature. . . . Towns have no power . . . to change or modify the public law regulating taxation." Perley, J., in Mack v. Jones, 21 N.H. 393, 395; Chase, J., in New London v. Academy, 69 N.H. 443, 444. Under the constitution, the taxing power can be exercised only by force of direct authority from the people, or by the legislature, or through authority derived therefrom. "No . . . tax . . . shall be established, fixed, laid, or levied, under any pretext whatsoever, without the consent of the people or their representatives in the legislature, or authority derived from that body." Bill of Rights, art. 28. No tax can be levied by virtue of the action of any subordinate municipal body unless authority for such action has been conferred by the legislature. 2 Dill. Mun. Corp., s. 536. In this state, the execution of the taxing power immediately affecting the taxpayer is in the hands of officers chosen by the municipal subdivisions of the state — the selectmen or assessors, and collectors. Such officials in the performance of these duties are public *Page 536 officers — not agents of the municipality through whose agency they are chosen.
In Hibbard v. Clark, 56 N.H. 155, it was held that taxes were not a debt or demand from taxpayers to the town, in such sense that they could be set off by the town summoned as trustee of such taxpayer against an amount due from the town to such person. One reason given was that neither the collector of taxes nor the town could maintain a suit for the collection of taxes. In Laws 1881, chapter 28, it was provided that "the selectmen of any town . . . may, in a particular case, cause any tax collectible by any town . . . officer to be collected by suit at law or bill in equity." P. S., c. 60, s. 17. It is said incidentally in Dana v. Colby, 63 N.H. 169, 171, that this statute authorizes suit in the name of the town. Whether the suit should be in the name of the town or of the officer charged with the collection of the tax may not be very material as to the maintenance of the action, although the latter seems to be the usual course. See cases cited in Cooley on Taxation 300, note 4. But if for some purposes, including its collection by suit, the tax may be regarded as a debt, it is a debt owed not to the town as a corporation, but to the public. Dana v. Colby, supra; Edes v. Boardman, 58 N.H. 580, 585. If the town of Canaan may properly appear as plaintiff in the suit, such appearance is not by virtue of any private proprietary interest in the tax. So far as this suit is concerned, as plaintiff it represents the state in the exercise of its sovereign taxing power. Its interest and rights are no more than if the suit were in the name of the tax collector, or if the question involved were the validity of a sale of the defendants' property under the collector's warrant. So far as the town is a party to this suit in the execution of the sovereign power of taxation, the town plaintiff is mere piece of governmental machinery. Gooch v. Exeter, 70 N.H. 413. It appears in its purely public capacity in this case for the state, and is the state. The reservations of the bill of rights for the protection of rights not public but private have no application. Wooster v. Plymouth, 62 N.H. 193; Farnum's Petition, 51 N.H. 376. The plaintiff as a town in any capacity has no control over the questions involved in this tax. It cannot by town vote direct whether the property in question should be assessed for taxation or not, or determine its value. By similar action it could not authorize this suit. It has no control over it. Payment to the collector would defeat the suit, and a vote of the town to become nonsuit, or to submit to a verdict for the defendants, could not be pleaded in defence of the action and would not discharge the tax. Although named as plaintiff, the town of Canaan is in no sense a party to the controversy, which is between the state in the exercise *Page 537 of its taxing power and the taxpayer defending. As a governmental agency, the town of Canaan has no power to assess taxes. Taxes are assessed by governmental officers under legislative direction. Whatever private proprietary right of taxation, if any, the town of Canaan possessed prior to the constitution no such right was reserved to it by that instrument; but such right was expressly denied to it by the provision permitting taxation only by the legislature, or through authority derived therefrom.
But while no rights of the town are infringed by the exemption from taxation of the defendants' property within the plaintiffs' territorial limits, the constitutionality of the exemption, as infringing constitutional rules of uniformity and equality and general legislation as to the individual taxpayers of the town, remains to be considered. It is argued that if this property is not taxed, the burden of the remaining taxpayers is increased; that remitting the defendants' tax of $11.87 is precisely the same as levying a tax of $11.87 upon the remaining taxpayers, and presenting the proceeds to the defendants. Morrison v. Manchester,58 N.H. 538, 550; State v. Express Co., 60 N.H. 219, 251, 252.
It is undoubtedly true that all exemptions from taxation are practically equivalent to a direct appropriation. Such is the effect of the exemption of houses of public worship, parsonages in part, and seminaries of learning. State v. Express Co., 60 N.H. 219, 260. Upon the ground that the imposition of a special tax upon the inhabitants of Canaan, to support the water-works of Enfield not intended to serve any portion of the territory of Canaan, would be beyond the power of the legislature, it is urged that, since the exemption would be practically equivalent to such a tax, the exemption must be invalid as contrary to general principles of taxation, well understood in this state and repeatedly elaborated in the decisions of this court. If the question is considered as merely one of equality in taxation, this conclusion seems abundantly sustained by our decisions. Opinion of the Court, 4 N.H. 565; Smith v. Burley, 9 N.H. 423, 437; Morrison v. Manchester, 58 N.H. 538, 548, 555; Edes v. Boardman,58 N.H. 580; Carpenter v. Dalton, 58 N.H. 615; First Nat'l Bank v. Concord,59 N.H. 75, 77, 78; Berry v. Windham, 59 N.H. 288; Robinson v. Dover,59 N.H. 521; Boston etc. R. R. v. State, 60 N.H. 87, 94; Berlin Mills Co. v. Wentworth's Location, 60 N.H. 156; State v. Express Co., 60 N.H. 219; Franklin Street Society v. Manchester, 60 N.H. 342, 347; Weeks v. Gilmanton, 60 N.H. 500; Curry v. Spencer, 61 N.H. 624; Cheshire County Tel. Co. v. State, 63 N.H. 167, 169; Boston Maine R. R. v. State, 63 N.H. 571,573; Boody v. Watson, 64 N.H. 162; Holt v. Antrim, 64 N.H. 284; Winkley v. Newton, 67 N.H. 80; Kennard v. Manchester, 68 N.H. 61; *Page 538 New London v. Academy, 69 N.H. 443; Amoskeag Mfg. Co. v. Manchester,70 N.H. 200; S.C., 70 N.H. 336.
Though the principle relied upon is sound, the application of it as a determinative factor in this case is erroneous. So applied, it proves too much. If it establishes that the exemption is invalid in this case, then all exemptions of every kind and nature are equally invalid; for the exclusion of any property from taxation, to the extent that it is thereby relieved, must as a mathematical proposition increase the burden upon property that is taxed. The exemption of the public property of the state or any of its subdivisions must also in the same way increase the local burden upon the community where it is situated — a burden which could not by the taxing power be directly placed on such community for a non-local purpose. But the principle involved in the question of legislative power to pass the enabling act is not one of taxation, but of exemption. If the constitution requires all property within the state to be taxed, then the exemption is illegal. If it does not require the taxation of all property, the effect that may be produced by the taxation of less than all would seem to be immaterial.
The constitution is not self-executing in the matter of taxation; the details by which an equal division of the expense of protection shall be made are not prescribed by the instrument. Bill of Rights, art. 12; Const. arts. 2, 5, 6. The framers of the constitution were practical men — not theorists. To them the document was a practical instrument. While prescribing an equal division of the expense of protection, they left the scheme by which such equal division should be worked out to the legislature, being careful to provide against the taking of any part of a man's property for such expense without the assent of the legislature in article 12 of the bill of rights, and repeating that declaration with specific reference to taxation in article 28. It would seem from the reading of these provisions that no tax of any particular property or person could be justified except by virtue of an act of legislation imposing it, and that the framers of the constitution meant by an equal division of the expense of protection such a division as would be "proportional and reasonable," having due regard "for the benefit and welfare of the state" and the special injunctions of article 82 (83). The framers of the constitution must also have had in mind the existing practice in levying taxes, for they specially provided for the assessment of the charges of government "on polls and estates in the manner that has heretofore been practiced." Const., art. 6.
But we are not left entirely in the dark to speculate at this late day upon the subject, nor are we at liberty now to draw from *Page 539 the general terms of a practical instrument the inference that the parties to the contract had in mind an impossible and impractical scheme of altruistic equality. The meaning of the instrument as to the power of legislative exemption from taxation is shown by the uninterrupted exercise of the power since its date. The fact of exemption appears from the reported decisions of this court reaching back a hundred years and by the statutes of the state going even farther back. "It is a well settled rule, that no tax shall be considered as imposed by law, in the absence of a manifest declaration of the intent of the legislature to impose it. . . . Taxation not provided, and in fact prohibited, by law is no taxation — is a purely void act." Sunapee v. Lempster, 65 N.H. 655, 656.
"By the constitution (Bill of Rights, arts. 12, 28; Part II, arts. 5, 6) and the uniform practice under it for more than a hundred years, no property can be taxed except such as is declared taxable by the legislature. . . . Much property has been and still is untaxed." Carpenter, J., in Boody v. Watson, 64 N.H. 162, 195. "By our statute, all real estate, with certain specified exemptions, is liable to be taxed. . . . Our statute sets out and describes the different classes of personal property liable to be taxed, and no other personal property than the kinds thus specified and enumerated is liable to be taxed in this state." Perley, C. J., in Nashua Savings Bank v. Nashua, 46 N.H. 389, 392. "There are and have been . . . two classes of statutes upon the subject of taxation. The object of one is to establish the rates and enumerate the property to be assessed." Smith v. Burley, 9 N.H. 423, 429. "There is no doubt that the legislature may provide by general laws for the exemption of certain classes of property from taxation, as well as exempt it . . . by omitting it in the description of property required to be taxed." Brewster v. Hough, 10 N.H. 138, 142. "To establish the rules by which each individual's just and equal proportion of a tax shall be determined is a task of much difficulty, and a very considerable latitude of discretion must be left to the legislature on the subject. . . . Within the limits of this discretion, as to the selection of proper subjects of taxation and the proportion of the tax that shall be laid on each subject, the authority of the legislature is, without question, supreme." Opinion of the Court, 4 N.H. 565, 570. "From the time of the adoption of the constitution to the present day, only such estates and property have been held to be taxable as the statute in force at the time has declared subject to assessment; and from time to time classes of property, by act of the legislature, have been added to or struck from the list of taxable estates. We are not aware that the legislative *Page 540 power to do this, under our constitution, has ever been questioned." Report of Judge Sawyer, Chairman of Tax Commissioners, 1876, p. 8.
Although real estate generally has been taxed, since the Revised Statutes of 1842. certain classes of real estate have been expressly exempted. R. S., c. 39, s. 2; G. S., c. 49, s. 2; G. L., c. 53, s. 2; P. S., c. 55, s. 2. And prior to the Revised Statutes, if not specially excluded, lands owned by the town were not taxed. "There are and always have been exemptions, where the statute has not expressly made any. They depend on invariable usage, growing out of the reason and nature of the thing. They are more ancient than our statutes (1770), and are not repealed except by express clauses for the purpose, or by provisions necessarily and manifestly repugnant." Smith, C. J., note to Kidder v. French, Smith (N.H.) 155, 157 (1807); Franklin Street Society v. Manchester, 60 N.H. 342; Grafton Country v. Haverhill, 68 N.H. 120. The universal, contemporaneous, and continuous understanding that no property was taxable except such as was enumerated by the legislature for that purpose seems to follow logically from the constitutional provision that no tax should be laid except by the legislature or authority derived therefrom.
But the meaning of the instrument is settled by the continuous and uninterrupted interpretation placed upon it for over one hundred and twenty years. The question is not now an open one. Pierce v. State, 13 N.H. 536,573; Dublin Case, 38 N.H. 459, 512; Great Falls Mfg. Co. v. Fernald,47 N.H. 444, 459; Copp v. Henniker, 55 N.H. 179, 209; King v. Hopkins,57 N.H. 334, 356; Morrison v. Manchester, 58 N.H. 538, 551, 552; State v. Hayes, 61 N.H. 264, 322; Boston etc. R. R. v. State, 62 N.H. 648, 649; Keniston v. State, 63 N.H. 37, 38. No case is to be found holding a tax invalid because of the exemption of other property by either express provision or failure to enumerate it as taxable. No case is found in which a tax assessed upon property exempted by the legislature has been held valid. There are many cases in which the extent of a claimed exemption has been discussed and time spent in ascertaining the legislative intent, which was simply wasted if it had been understood that no exemption at all was permissible. In Warde v. Manchester, 56 N.H. 508, a petition for the abatement of taxes assessed upon property made exempt by the statute, the tax was abated upon the ground that the legislature in exempting the property in question — a seminary of learning — performed a duty prescribed by article 83 of the constitution; and in Opinion of the Court, 4 N.H. 565,570, and in Sunapee v. Lempster, 65 N.H. 655, exemptions from poll taxes are expressly approved. In Opinion of the Court, while it is conceded *Page 541 that a tax upon every poll in the state might be proportional, it is said: "No person would suppose such a tax would be just and reasonable." Under the settled construction of the constitution, the power of the legislature to exempt from taxation a certain class of property, as for example that used for maintaining public water-works, by omitting it from the list of taxable estate or by expressly excluding it therefrom, cannot be denied.
But assume that this universal, uninterrupted interpretation of constitutional uniformity and equality in taxation is erroneous and must be reversed. As has been already said, the constitution is not self-executing in this respect. It does not authorize any officials or department to assess taxes, except by authority from the legislature. If the true construction of the constitution requires the legislature to impose taxation upon all classes of property in the state, the failure of the legislature to comply with the constitutional command would be a violation of duty imposed on it by the fundamental law. If we assume the action of the legislature to have been unconstitutional because of a failure to tax all classes of property, the unconstitutional action of the legislature in refusing or neglecting to provide for the taxation of certain classes of property would not authorize the court to invade the domain of the legislature and order the taxation of such property; for the power of taxation is included within the supreme legislative power vested by article 2 of the constitution in the senate and house of representatives. Morrison v. Manchester, 58 N.H. 538, 548, 549. In Minnesota, under a constitution requiring "all taxes . . . to be as nearly equal as may be" and authorizing a tax upon all inheritances, it was held that a law which did not place the tax upon all inheritances, but exempted some not within the exception of the constitution, was void. Drew v. Tifft, 79 Minn. 175, — 79 Am. St. Rep. 446; State v. Bazille, 87 Minn. 500, — 94 Am. St. Rep. 718. The court did not undertake to correct what they considered a violation of their constitution, by extending the law so as to include property which ought to have been, but was not, within its terms.
"If the language of the statute is capable of being so construed as to be consistent with the constitution, the court is bound to give it that construction. If not capable of such construction, all the court can do is to pronounce it void. This is the whole extent of the doctrine. . . . It does not authorize the addition to the statute of such words, provisions, or modifications, not therein expressed or implied, as may be necessary to render it consistent with the constitution. If it did, an unconstitutional statute would be impossible. By addition or subtraction its defects would be cured." State v. Gerry, 68 N.H. 495, 503. In Boody v. Watson, *Page 542 64 N.H. 162, the power of the court to reverse the action of selectmen in exempting certain property which the true construction of the statute showed the legislature intended should be taxed, and to correct the error by ordering an assessment of the tax, is declared, but there is no suggestion of power in the court to order an assessment in violation of the command of the legislature. Nor is there in that case or the preceding Boody v. Watson, 63 N.H. 320) question of the validity of the exemption if authorized by the legislature. Whatever power the court may have to correct unconstitutional action of the legislature in the exercise of the power of taxation confided to that body by the constitution, its power would seem to be limited to declaring the invalidity of taxes assessed under an enactment void because of lack of conformity to the constitution. It cannot make an act taxing some and exempting others valid by extending it so as to include property which the legislature intended should not be taxed, and thereby validating taxes not authorized by the legislature.
Taking all the legislation as to the taxation of municipal waterworks, recited earlier in this opinion, together, the legislative intent clearly expressed is that some towns owning property for water-works purposes without their territorial limits should pay taxes on the property in the town in which it is situated, and that others should not. Whether as an exercise of the taxing power such a scheme of taxation is within legislative power, is not material in this suit. So far as it may be claimed that the existing law upon the subject is unequal, if under it Newport and Littleton are required to pay taxes while Concord and Enfield are not, such inequality between different water-works towns is no concern of the plaintiff or its taxpayers. A constitutional question is not generally considered unless raised by one whose right has been invaded by the alleged breach, nor unless its decision is necessary to the determination of the case. Copp v. Henniker, 55 N.H. 179, 203; Cool. Con. Lim. (7th ed.) 232; 6 Am. Eng. Enc. Law 1090. Canaan taxpayers are not injured because Littleton and Newport pay taxes, while Enfield does not. Their share of state and county expense is made less, not more, if affected at all, by the error of which they complain; while each taxpayer's share of local Canaan expense is not affected in any way by the taxation or non-taxation of any particular estate outside the town. Whether, as between different water-works towns similarly situated, the law is unequal as imposing different burdens upon each, as a question that may be raised by a town complaining of a burden of taxation imposed upon it and not on others, which perhaps might have been raised, but apparently was not, in Newport v. Unity. *Page 543 If this question is raised, it may be a sufficient answer that towns or fire districts have no constitutional right to construct waterworks or to invade the territory of other towns to obtain their supply, and that they cannot complain if the privilege granted and accepted is accompanied by the burden of taxation. This consideration may or may not be sufficient to determine the question. Other answers may be found. It is not intended to suggest that the fact that municipal subdivisions are mere agencies of the state is not a sufficient answer. Local reasons may require taxation in some cases and not in others, precisely as the privilege of going outside the town has seemed necessary for some towns and not for others, or as some towns have been granted the privilege of taking or purchasing existing local aqueducts while others have been expressly excluded from interfering with any pond, spring, or stream used as the source of supply of an existing aqueduct. See the various enabling acts cited supra. No ground is perceived upon which it can be held that all such acts must be identical.
But the question, as has been said, is not one of taxation but of exemption; of the exercise, not of the taxing, but of the protective power. "An act entitled an act of taxation may be valid, although not an exercise of the power of collecting the constitutional shares of expense. The title may be an immaterial misnomer and error of form only, and the act may be an exercise of some of the other powers which provide for the common benefit, protection, and security, and which may be conveniently grouped under the name of the protective power. . . . The payment of bounties by tax exemptions, and the receipt of compulsory contributions under the protective power, though they affect the revenue, are not to be confounded with the operation of the tax power which collects the constitutional shares of the expense of protection." State v. Express Co., 60 N.H. 219,257, 259, 260. In the protective power rests the authority for the entire waterworks constructing and maintaining power given the defendants and many other towns and districts. Russ. Pol. Pow. 89. That the supply of water for fire protection and the promotion of the health of the citizens is a public service in which the government may engage, and as to which it has power to make various regulations affecting more or less the private property rights of citizens . in no way interested in a particular service, may safely be assumed without citation of authority. P. S., c. 108, ss. 13, 14; Laws 1895, c. 76, ss. 1-5.
All the questions material in this case between these parties were raised in State v. Griffin, 69 N.H. 1, and after most exhaustive consideration settled adversely to the plaintiffs' contentions here. The case was a proceeding under section 1, chapter 26, *Page 544 Laws 1891, prohibiting under a penalty the placing of sawdust by any person in Lake Massabesic in Auburn and Manchester, or in any tributary thereto. The defendant was a riparian proprietor in Auburn, upon a brook flowing into the lake, and operated a sawmill, the sawdust from which, passing into the brook, was carried away into the lake. For so doing he was found guilty and fined magistrate under the statute, and upon his appeal it was claimed that the statute was unconstitutional because he was deprived of his property right as a riparian proprietor, of using the brook to carry off the sawdust, without compensation, and that the law was an unequal one because the statute was special instead of general and discriminated in favor of some citizens to the detriment of others. This is precisely the contention here: that through the effect of the exemption, the citizens of Canaan are deprived of property through the taxing power without the compensation of protection to which they are entitled, and that the statute is limited in its application to Enfield. In that case the defendant relied on his property rights in Auburn while the water-works were solely for the benefit of Manchester, as here the plaintiff relies on alleged rights of property owners in Canaan as against a public use confined to. Enfield. "The police power of the state extends to the protection of the lives, health, comfort, and quiet of all persons, and the protection of all property, within the state; and persons and property are subjected to such restraints and burdens as are reasonably necessary to secure the general comfort, health, and prosperity." State v. White, 64 N.H. 48, 50.
State v. Express Co., 60 N.H. 219, is an elaborate treatise upon the taxing power in this jurisdiction. Not sustainable as an exercise of the taxing power, the act there in question could not be sustained under the protective power, because as was said (p. 262): "There is no purpose for which we can presume the statute on which this suit is brought was designed to be a discouraging or encouraging act of the protective power." The contrary appears here. The protection of the property, health, comfort, and lives of the citizens is within governmental power; and the exemption from taxation of water-works designed for effecting such purpose has a plain tendency to encourage their construction and maintenance. But unless we are prepared to overrule State v. Griffin, it is unnecessary to elaborate the question further. The power to enact legislation for the purpose in view, which may to some extent interfere with private property rights without such compensation as must be awarded under the exercise of the power of eminent domain, or such return as is due for property taken under the taxing power, may be sufficiently rested upon the exhaustive *Page 545 discussion to be found in that case. The power to act existing, the wisdom of its exercise is not a judicial question. Gooch v. Exeter, 70 N.H. 413,415.
There may be good reasons why Manchester, acquiring a large tract of Auburn real estate for the protection of its Massabesic water supply, should pay taxes in Auburn, and none at all why Enfield should pay anything to Canaan. The tax sued for is trifling. Subtracting all but the local tax which alone concerns Canaan, it is more trifling still. It has appeared, however, in the course of the argument, that Enfield has expended a considerable amount of money to render the supply available, and that the tax upon the present valuation is a considerable sum. It does not appear that such improvements call for any additional expenditure for highways, schools, or police; so that the practical question about which the parties have been contending with so much earnestness is not whether the Canaan local treasury shall be deprived of an insignificant sum heretofore obtained by taxation of this land, but it is whether the public using this water shall be taxed a large amount for the profit of Canaan taxpayers. These considerations may not bear directly upon the constitutional question, but they tend to show that the exemption is not an unreasonable exercise of the protective power.
The plaintiffs concede the validity of the exemptions of public property of the state, county, and town (P. S., c. 55, s. 2), and do not attack the exemption of houses of worship, schoolhouses, and seminaries of learning, doubtless sustainable under some branch of the protective power. Const., art. 82 (83); Warde v. Manchester, 56 N.H. 508. The defendants contend that this property, owned by a municipal subdivision of the state and held for a public purpose, is within that class of property which the plaintiffs concede may be exempted, and they also claim that such property, in the absence of legislation expressly taxing it, is presumptively exempted from the operation of general tax laws. Grafton County v. Haverhill,68 N.H. 120; Franklin Street Society v. Manchester, 60 N.H. 342, 347; Kidder v. French, Smith (N.H.) 155, 157; Cool. Tax. 130, 131. The decision in Newport v. Unity does not controvert, but concedes, this principle, and implies that but for the statute taxing such property, the water-works property of Newport held in Unity for the public purpose of supplying water in Newport would be exempt from taxation. Wayland v. Commissioners, 4 Gray 500; Somerville v. Waltham, 170 Mass. 160; West Hartford v. Commissioners,44 Conn. 360; Rochester v. Rush, 80 N.Y. 302; People v. Assessors,111 N.Y. 505; Water Commissioners v. Gaffney, 34 N. J. Law 131. *Page 546
If water-works property publicly owned is not taxable except by force of express clauses taxing it, the omission to tax it, or the exclusion of it from the tax list, cannot be a violation of legislative duty. That the furnishing of water to the citizens of Enfield as a protection against fire and for the promotion of the health of the citizens is a public service is conceded, so far as Enfield is concerned. But it is urged that this is not public property so far as Canaan taxpayers are concerned, if it is public as to residents of Enfield Fire District. This contention fails to distinguish between the ownership and the use. The distinction made in many cases as to the liabilities of municipal corporations growing out of the ownership of property has been already alluded to. But it is unnecessary to consider whether the ownership of these works by the Enfield Fire District is or not, as to all other persons, governmental and public. That the use is sufficiently public to authorize the exercise in Canaan of the power of eminent domain granted by the special act is not denied. Whether the use is public must depend upon its character — not upon whether it is viewed from Enfield, Canaan, or Concord. As to the citizen of Enfield Fire District, not only is the use public, but the ownership is public. His property may be lawfully taken by taxation to support the enterprise, and he has a share in its management through his vote. The Canaan taxpayer cannot be taxed for the support of the works, neither has he any voice in the management. It can perhaps be fairly said that as to him the ownership is private; that his relation to it is precisely what it would be if the ownership were vested in a private corporation.
Upon the question whether ownership in this sense private is material upon the question of implied exemption from taxation of property owned in one town and situated in another, the authorities are not in entire accord, although the weight of authority tends to support the defendants' contention. Sumner County v. Wellington, 66 Kan. 590, — 60 L.R.A. 850, note. In Massachusetts it seems to be the rule that property held for a public purpose for which it could be taken by eminent domain is exempt, in the absence of express provisions taxing it, regardless of the character of its ownership. Milford Water Co. v. Hopkinton, 192 Mass. 491; Worcester v. Railroad, 4 Met. 564. This rule may not be generally admitted. Cool. Tax. 60. But whether the legislature may, for the advancement of a purpose deemed by them beneficial to the state, exempt a class of property from taxation, is a different question. Although the property may not be impliedly exempted because of its ownership, it may nevertheless be expressly exempted by the legislature to encourage such use for the general advantage of the state. The use being sufficient to justify an *Page 547 express exemption, the ownership of the property is not material unless made so by the exempting statute. Whether the ownership of the property used in promoting a public purpose is private or public is immaterial. The question is settled by the universal practice under the constitution. See Judge Sawyer's Report 13-17; authorities supra; State v. Griffin,69 N.H. 1; Boston etc. R. R. v. State, 62 N.H. 648, 649; State v. Hayes,61 N.H. 264, 332; Morrison v. Manchester, 58 N.H. 538, 551, 552.
The defendants are engaged in the public service in a certain district. They are bound to serve all who apply for their service on equal terms. Their service is no less public because it does not extend through the whole state. The service of transportation furnished by the Chester and Derry Railroad with its seven or eight miles of track is equally public in principle, if not in extent, with that supplied by the Boston Maine Railroad operating 1,038 miles. Whether, because the ownership of the property taxed in this case is confined to a particular subdivision of the state, such ownership is public or private as to territory not embraced therein, is immaterial. If the ownership were entirely private, such private character would not invalidate a general tax exemption granted by the legislature under constitutional power to provide for the common benefit, protection, and security.
But the plaintiffs say that if by general law the legislature might exempt all public water-works property from taxation, this exemption is invalid because it professed to deal only with the property of the Enfield water-works and not with water-works property generally. No clause in the constitution prohibiting legislation applicable to a particular place or subject is pointed out. Nothing therein contained expressly requires all legislative acts to be general in terms. If such was the requirement, not only would the particular provision be invalid, but the defendants' entire charter would be void, as well as all others of like character. The sole ground upon which this contention can stand, if at all, is that the exempting clause is "inconsistent with the equality of right which the constitution secures to all." There is no other ground for the contention. State v. Griffin, 69 N.H. 1. So far as all persons interested in this proceeding who are or may be affected by this exemption are concerned, it is an equal law. It affects all property within its reach alike. All persons may go to Enfield and enjoy the privileges of the water-works without the burden of the Canaan tax. "The equality of the constitution is the equality of persons and not of places — the equality of right and not of enjoyment. A law that confers equal rights on all citizens of the state, or subjects them to equal burdens, . . . is an equal law, though no one can enjoy the right, [or] be subjected *Page 548 to the burden, . . . without going to or being in a particular part of the state." State v. Griffin, 69 N.H. 1, 30; Gooch v. Exeter, 70 N.H. 413, 415. The plaintiffs' contention on this point also is concluded by State v. Griffin. It is impossible to add anything to the discussion in that case. It may however be said, that to hold that the act is invalid on this ground would invalidate many acts not referred to in State v. Griffin. Charters of schools, seminaries of learning, and corporations for various religious, charitable, and educational purposes have been so exempted. It has not occurred to any one to claim that the exemptions were invalid on this ground. See Alton Bay Ass'n v. Alton, 69 N.H. 311; New London v. Academy,69 N.H. 443; Young Men's Christian Ass'n v. Keene, 70 N.H. 223.
No good reason has been found for rejecting the principles elucidated in State v. Griffin; because of the uniform interpretation placed upon the constitution since 1784, it cannot now be held that no power of apportionment in taxation was granted the legislature by the constitution. Cool. Tax. 145. As no constitutional right of the town of Canaan or its taxpayers has been invaded by the legislative direction to the assessors of Canaan to omit this property from the invoice of the town, it is not necessary to speculate upon what basis listing it for taxation by them, without legislative authority for such action, can be sustained. I agree that there should be judgment for the defendants.
* In addition to the acts cited in the text, the following have been examined: Laws 1899, c. 205 (Portsmouth), Laws 1901, c. 183 (Plymouth Village Fire District), Laws 1901, c. 265 (Jaffrey), Laws 1901, c. 289 (Durham), Laws 1903, c. 255 (Littleton), Laws 1905, c. 169 (Wilton), and Laws 1907, c. 247 (Lebanon Center Village Fire Precinct). All the foregoing are expressly authorized to go outside town limits. Only Portsmouth and Durham are exempted from taxation. Bartlett Village Fire Precinct (Laws 1897, c. 139) and Hillsborough Bridge Village Fire District (Laws 1897, c. 150), while not expressly authorized to extend beyond their territorial limits, are exempted from taxation. Goffstown Fire Precinct (Laws 1891, c. 269; Laws 1893, c. 162) appears to be limited to Goffstown, but is expressly exempted from taxation. Sunapee (Laws 1901, c. 197) and Gotham (Laws 1905, c. 188) are confined to the town, as apparently is Claremont (Laws 1899, c. 180). Other enabling acts are Laws 1897, c. 180, ss. 8, 9 (Warner), Laws 1903, c. 229 (Hudson), Laws 1903, c. 328 (Greenville), and Laws 1905, c. 170 (North Conway Water Precinct). Chapter 126, Laws 1907, gives general authority to towns and precincts, but confines their powers to the town acting itself, or in which the precinct constructing water-works is situated.