Public Aid—A Constitutional Question. 
349 
establish the power of municipalities to subscribe to stock, but 
leave undecided the question of the constitutionality of dona¬ 
tions, which, according to Beach, is now a generally accepted 
principle of law except in the three states named. The ques¬ 
tion as to the power of the legislature to raise money, or to au¬ 
thorize it to be raised, by taxation for the purpose of donating 
it to a railroad company was decided in Whiting vs. Sheboygan 
and Fond du Lac Railroad . 1 The power to pay for stock sub¬ 
scriptions with money raised by taxation having been granted, 
it must be shown, in order to invalidate taxation for purposes 
of donations, that subscriptions differ essentially from dona¬ 
tions so far as the tax-payers are concerned. The case further 
involves the nature of railroad corporations. The court held 
that to the extent of the stock subscriptions the municipality 
owns the road, and that to that extent the railroad may be said 
to be public property. And the question whether the public 
owns the property enters very materially into the consideration 
of the question whether the purpose is public or not. The ele¬ 
ment of public purpose again decides the question of taxation. 
The stockholder may insist upon the strict application of his 
money to the legitimate purposes of the corporation. He may 
restrain the directors and officers from squandering and misap¬ 
plying it, and compel the company to use its funds in building 
and operating the road according to the true intent of his sub¬ 
scriptions. And since municipalities which subscribe have a 
voice in the management of the road, the money raised by tax¬ 
ation for such subscriptions is put to a very different use from 
that which is donated. The attempt to donate money raised by 
taxation is to compel the public “to pay tribute and taxes too — 
to pay for property, and yet not own it — to pay for it, and yet 
pay the company for the privilege of using it.” The giver of a 
gratuity has not the legal and equitable rights which the stock¬ 
holder enjoys. There is a fundamental difference between sub¬ 
scriptions and donations. 
But are not donations to railroad companies very similar to 
moneys expended for public buildings, streets, and educational 
*25 Wis., 167; also Curtis vs. Whipple , 24 Wis., 350. 
