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The Boston State Hospital, of which the custody, control and management are

vested, under the provisions of St. 1909, c. 504, §§ 14-23, in the State Board
of Insanity and the trustees of said institution, is not subject to the inspection
and regulation of the officials of the city of Boston with relation to gas, electric
lighting and plumbing therein.

Board of

You have requested my opinion as to whether the Boston To the State State Hospital is subject to the regulation and inspection of the Insanity. officials of the city of Boston with relation to gas, electric light- January 27. ing and plumbing connected with the institution.

By the provisions of St. 1909, c. 504, §§ 14-23, the custody, management and control of the Boston State Hospital are entrusted to the State Board of Insanity and to the trustees of the hospital. Upon the State Board of Insanity are also imposed the duties of supervision, of approving plans and specifications for buildings, of making frequent visitations and careful inspections.

Since the Commonwealth has taken upon itself the entire custody and management of the property in question, and has by the provisions of the statute referred to regulated the conduct of its officers and agents in that custody and management, it must be considered to have retained these matters within its special and peculiar jurisdiction.

The statutes providing for regulation and inspection by officials of the city of Boston constitute a delegation of the police power of the Commonwealth, and that delegation is to be strictly construed. It is a presumption of law that the Legislature, in delegating that power, had primarily in view the regulation of the conduct of the citizen and not that of the Commonwealth. Therefore, while the provisions of the statutes with reference to regulation and inspection by city officials are general in their terms, and do not expressly exclude from their scope any property within the limits of the city, there is an implied exception of the property owned and controlled by the Commonwealth itself, and retained, through the provisions of the special statute cited, under its own jurisdiction. See 1 Op.

To the Tax
Commissioner.

1910 February 7.

Atty.-Gen. 290; Teasdale v. Newell, etc., Construction Co., 192
Mass. 440.

I am therefore of opinion that your question is to be answered in the negative.

PROPERTY OMITTED FROM ANNUAL ASSESSMENT REMOVAL OF TAXPAYER FROM THE COMMONWEALTH.

TAXATION

Under the provisions of St. 1909, c. 490, part I, § 85, an assessment of taxes upon property omitted from the annual assessment may be made, although the person assessed has removed from the Commonwealth prior to December 15.

You request my opinion as to whether the assessment of taxes authorized by St. 1909, c. 490, part I., § 85, upon property omitted from the annual assessment, may be made if the person assessed has removed from the Commonwealth prior to December 15. I assume, of course, that such person was a resident of the Commonwealth on the preceding 1st of May.

The statute is as follows:

If the real or personal estate of a person, to an amount not less than one hundred dollars and liable to taxation, has been omitted from the annual assessment of taxes in a city or town, the assessors shall between the fifteenth and twentieth days of December next ensuing assess such person for such estate. The taxes so assessed shall be entered on the tax list of the collector who shall collect and pay over the same. Such additional assessments shall not render the tax of such city or town invalid although its amount, in consequence thereof, shall exceed the amount authorized by law to be raised.

In my opinion, the assessment may be made. It is made as of May 1, and "is not to be considered as a new and independent assessment, but simply as the correction of a mistake in the regular taxation; . . . the tax of a tax-payer for the year is but a single tax, and a single assessment." Noyes v. Hale, 137 Mass. 266, 271; Harwood v. North Brookfield, 130 Mass. 561. I find no jurisdictional objection to the correction of a tax assessment in the fact of a change of residence by the person assessed.

CONSTITUTIONAL LAW-CONSTITUTION OF THE UNITED
STATES AMENDMENT

-INCOME TAX.

A proposed amendment to the Constitution of the United States, vesting in Congress the "power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration," was intended to empower Congress to lay and collect taxes on incomes without the restriction imposed by the Constitution of the United States in article I., § 8, that "all duties, imposts and excises shall be uniform throughout the United States," and § 9, that "no capitation, or other direct tax, shall be laid, unless in proportion to the census or enumeration herein before directed to be taken."

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Committee on

Relations. 1910

I am in receipt of a communication from you, dated Feb- To the ruary 7, in which, by direction of the committee on federal Federal relations, you submit certain questions with relation to a February 9. joint resolution of the Congress of the United States proposing an amendment to the Constitution of the United States, which amendment is now before that committee, and is as follows:

ARTICLE XVI. The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Your communication states that the committee on federal relations requires my opinion upon the "interpretation of the phraseology of the proposed amendment," and also requests me "to furnish an outline of the probable effect and operation of such tax, if levied, especially with reference to the existing laws of this Commonwealth on the subject." I am advised that the precise point to which your inquiry is directed is to so much of the proposed amendment as purports to authorize Congress to lay and collect taxes on incomes "without apportionment among the several States, and without regard to any census or enumeration."

The Constitution of the United States, in article I., section 8, among other provisions, empowers Congress "to lay and collect taxes, duties, imposts and excises," but imposes a limitation that "all duties, imposts and excises shall be uniform throughout the United States." By section 9 of the same article it is

provided that "No capitation, or other direct tax, shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken." By section 2 of article I. it is provided that:

Representatives and direct taxes shall be apportioned among the several states which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.

Taxes levied by Congress, therefore, if direct taxes, must be levied in proportion to the census or enumeration provided for in section 2 of article I. of the Constitution of the United States; and if indirect taxes, they must be subject to the qualification imposed by section 8 of the same article, — that they shall be uniform throughout the United States. The distinction between the two classes of taxes is well expressed in the case of Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, where, in an opinion by Chief Justice Fuller (page 557), it is stated:

Thus, in the matter of taxation, the Constitution recognizes the two great classes of direct and indirect taxes, and lays down two rules by which their imposition must be governed, namely: the rule of apportionment as to direct taxes; and the rule of uniformity as to duties, imposts and excises.

The first question to be considered is whether a tax on the rents or income of real estate is a direct tax within the meaning of the Constitution. . . . but a tax upon property holders in respect of their estates, whether real or personal, or of the income yielded by such estate, and the payment of which cannot be avoided, are direct taxes.

The court, in this case, decided that a tax levied by Congress upon the income from real estate, like a tax upon the realty itself, was a direct tax, and that the statute under considera

tion (28 Stat. 509, c. 349), so far as it purported to levy a tax upon income so derived, was unconstitutional.

Upon a rehearing of the same case (158 U. S. 601), the court held that the tax laid by the statute above referred to, upon income derived from real estate and from invested personal property, was invalid, for the reason that it constituted a direct tax, which could not be levied without apportionment among the several States, as provided in the Constitution.

The purpose of the proposed amendment to the Constitution is, therefore, as it expressly states, to empower Congress to lay and collect taxes on incomes, without the restriction imposed by the constitutional provisions above stated, that there shall be an apportionment among the several States, according to their inhabitants, to be determined by an enumeration made by the United States.

The effect and operation of an income tax laid by Congress under authority of the proposed amendment, if adopted, must be matter of pure conjecture, and must remain such until the passage of an act upon which an opinion may be based. It may be said, however, that the only effect which such an act could have with reference to the existing laws of this Commonwealth on the subject, would be the imposition of an added burden of taxation upon those persons who fell within its provisions.

-

HOURS OF LABOR

MERCANTILE ESTABLISHMENT
MANAGER OF DEPARTMENT.

St. 1909, c. 514, § 47, which provides that "no child and no woman shall be employed
in laboring in a mercantile establishment more than fifty-eight hours in a
week," does not prohibit the employment in such establishment of a woman
as the manager of a large department, entrusted with the control and super-
vision of numerous persons employed therein, and whose duties require the
exercise of judgment and discretion, and do not necessarily involve either
manual labor or labor performed within fixed hours.

MENT OF WOMEN

EMPLOY

In your letter dated February 3 you request my opinion on the question whether or not section 47 of chapter 514 of the Acts of 1909, which, so far as material, provides that "no child and no woman shall be employed in laboring in a mercantile

To the
Massachusetts

Chief of the
District Police.
1910
February 14.

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