due provision therefor had been made. It is to be further observed that no express provision is made in either bill for the repeal of existing provisions of law relating to taxation to which the Boston Railroad Holding Company is now subject. In the event that either bill was enacted in its present form, the court would doubtless hold, however, that the taxes were not cumulative, and that the existing provisions of law were repealed by implication. See Metropolitan Life Insurance Co. v. Commonwealth, 198 Mass. 466. The proposed act, under either draft, will accomplish two results: first, it will impose an excise upon the Boston Railroad Holding Company; and second, it will exempt from local taxation the bonds issued by that company. The question submitted involves a consideration of the constitutionality both of the excise and of the exemption from local taxation. I consider first the question of the constitutionality of the excise. The burden sought to be established by the proposed act is clearly not proportional, and does not fall within the constitutional requirement that taxes be "proportional and reasonable.” Constitution of Massachusetts, part the second, chapter I., section I., article IV. It can be sustained, if at all, only under the provision of the Constitution authorizing the Legislature to "impose and levy reasonable duties and excises." Constitution of Massachusetts, part the second, chapter I., section I., article IV. The power to impose an excise upon corporations under this provision is well settled. Portland Bank v. Apthorp, 12 Mass. 252; Commonwealth v. Hamilton Manufacturing Co., 12 Allen, 298; Minot v. Winthrop, 162 Mass. 113, 120. The only limitation upon the power of the Legislature in the premises is that the excise must be "reasonable". As was said in Connecticut Insurance Co. v. Commonwealth, 133 Mass. 161, at page 163: The power to determine what callings, franchises or privileges, or, to use the language of the Constitution, "commodities," shall be subjected to an excise, and the amount of such excise, belongs exclusively to the Legislature. The provision that it must be "reasonable" was not designed to give to the judicial department the right to revise the decisions of the Legislature as to the policy and expediency of an excise. Great latitude of discretion is given to the Legislature in determining not only what "commodity" shall be subjected to excise, but also the amount of the excise and the standard or measure to be adopted as the foundation of the proposed excise. The court cannot declare a tax or excise illegal and void, as being unreasonable, unless it is unequal, or plainly and grossly oppressive, and contrary to common right. In my opinion, the basis of computation provided for in the draft submitted to me furnishes a fair and proper method of valuing the franchise. See Connecticut Insurance Co. v. Commonwealth, supra, p. 166; see also Commonwealth v. Berkshire Life Insurance Co., 98 Mass. 25. And, apart from the question of inequality, it would seem to be unobjectionable. The test of equality, which must be satisfied in order that an excise may be reasonable, is that it "operates alike upon all corporations or associations which exercise the franchise or function which is intended to be taxed." Connecticut Insurance Co. v. Commonwealth, supra. As was said by Chief Justice Parker in Portland Bank v. Apthorp, supra: Taxes of this sort must undoubtedly be equal; that is, they must operate upon all persons who exercise the employment which is so taxed. A tax upon one particular moneyed capital would unquestionably be contrary to the principles of justice, and could not be supported; but a tax upon all banks we think justifiable, upon the grounds we have stated. See Oliver v. Washington Mills, 11 Allen, 268. The franchise or function exercised by the Boston Railroad Holding Company upon which the proposed excise is to be based is the power to acquire and hold as a corporation the stock, bonds and other evidences of indebtedness of a single corporation, the Boston & Maine Railroad. The power to acquire and hold stock, bonds and other securities, as I am advised, is now enjoyed by many corporations formed under the Business Corporation Law, and may be contained in the articles of incorporation of any corporation hereafter formed under such law. There is no reason why a corporation might not be organized for the sole purpose of acquiring and holding this form of property; and, as I have already said, the Boston Railroad Holding Company might have been incorporated under the general law. See, however, St. 1907, c. 585, cited supra. I am constrained to say that I can perceive no valid distinction between the Boston Railroad Holding Company and other corporations organized for similar purposes, which would serve to justify a distinction in the method of taxation. The question in this case, as in all similar cases, is one of degree. Different classes of corporations have been subjected to different forms of excise without contravening the constitutional requirements hereinbefore referred to; thus, for example, one form of excise is applicable to savings banks, another to insurance companies and a third to business corporations. In each case, however, the difference has been based upon some distinction in the extent or character of the franchise or function which it was intended to tax. In the case before me I am unable to discover such a distinction between this corporation and others which have been or may be formed with like powers, as to justify a distinct method of taxation. It remains to consider the provision to be found in the fourth section of each of the bills, exempting the bonds of the Boston Railroad Holding Company from local taxation. All taxes must be proportional and reasonable in their application, under the constitutional authority of the Legislature "to impose and levy proportional and reasonable assessments, rates, and taxes, upon all the inhabitants of, and persons resident, and estates lying, within the said commonwealth" (Constitution of Massachusetts, part the second, chapter I., section I., article IV.); and if an exemption from taxation of this nature did not have the effect to "render the general tax on property throughout the Commonwealth unequal and disproportionate" (Commonwealth v. The People's Five Cents Savings Bank, 5 Allen, 428, 437), it would be unobjectionable. As was pointed out in the Opinion of the Justices, 195 Mass. 607, at page 611: If a reasonable excise tax is lawfully imposed upon a corporation, according to the amount of its property or business, it is in the power of the Legislature, for the purpose of avoiding double taxation, to exempt its property held and used in the business for which the excise tax is paid, and to exempt the stockholders or owners of the beneficial interest in this property, from liability to a property tax upon it. The exemption must, however, apply to and include all property of the same general class, for otherwise similar property which is not exempted will be unequally and disproportionally taxed. If the excise upon the Boston Railroad Holding Company to be established by the proposed act is held to be unconstitutional, in accordance with the view which I have already expressed, I am unable to distinguish between the bonds of that corporation and the bonds of any other business corporation which may hold or be authorized to hold securities under like circumstances. Even if such excise is held to be constitutional, it will not, in my opinion, furnish a sufficient justification for the exemption of the bonds from local taxation. As has already been pointed out, the excise to be levied upon the Boston Railroad Holding Company will not exceed the minimum amount, which is one-tenth of one per cent., in the one case, of the fair market value of the aggregate shares of stock and bonds, and in the other, the fair market value of the capital stock. The burden so imposed, which alone distinguishes the bonds of this corporation from bonds issued by other business corporations of the class already mentioned, cannot, it seems to me, justify an exemption of the bonds from a local taxation which is many times greater in amount, and to which the bonds of such other business corporations will be subjected. In other words, apart from the imposition of the excise, I am unable to discover any valid distinction between the bonds of the Boston Railroad Holding Company and the bonds of any other business corporation which may hold securities of like character; and, even if constitutional, I do not deem that the imposition of such an excise is sufficient to create a distinction which would warrant the exemption provided for in the bills submitted to me. The communication from the committee on rules contains a request that, if in the opinion of the Attorney-General the drafts of legislation submitted are unconstitutional, he suggest such modification, to accomplish the purpose of the bills by making them of general application or otherwise, as may overcome the objection. In this respect I am unable to comply with the desire of the committee, for the reason that, in my opinion, the only method by which the purpose of the bills may be constitutionally accomplished would be by the enactment of general legislation applying to all business corporations authorized to hold securities which have been directly or indirectly subjected to taxation; and such legislation would, as I am advised and believe, work fundamental changes in the present tax laws of the Commonwealth, which I assume cannot be within the contemplation of the committee at this time. INSANE PERSON MENTAL DISEASE TEMPORARY CARE AND Under St. 1909, c. 504, § 44, providing for the temporary care, treatment and observation at the McLean Hospital of any person suffering from mental disease, "on the written application of his natural or legal guardian . . . together with the certificate of a physician qualified as provided in section thirty-two, that such temporary care is necessary by reason of mental disease," the physician must set forth, under oath, the same qualifications as those required under section 32. The term "natural guardian," as used in section 44 of chapter 504 of the Statutes of 1909, includes the father, and, upon the death of the father, the mother until she remarries. State Board By your communication dated April 20 you submit to me two To the questions relative to the construction of section 44 of chapter of Insanity. 504 of the Acts of 1909. (1) "Whether it is necessary that the physician should take oath to the certificate of mental disease which he makes under the provisions of said section?" Section 44 provides for the temporary care, treatment and observation at the McLean Hospital, for a period not exceeding seven days, of any person suffering from mental disease, "on the written application of his natural or legal guardian, or, if there be none, upon the written application of a chief or captain of police, any member of the district police, a selectman, the 1910 April 25. |