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of tax to be raised. In Oliver v. Washington Mills, 11 Allen, 268, 275, it was pointed out that:
In assessing the needful amount it should be laid on property, real and personal, within the Commonwealth, so that, taking "all the estates lying within the Commonwealth" as one of the elements of proportion, each taxpayer should be obliged to bear only such part of the general burden as the property owned by him bore to the whole sum to be raised.
It will be noticed that the tax under the proposed act bears no relation to the amount to be raised during the tax year, the rate being just as arbitrary as if the Legislature had prescribed a fixed rate, not by the amount to be raised in a given year, but by the average of the rates for the preceding years. For instance, suppose in a given town the expenses for a given year are very low; the result is a low tax rate for that year upon the real estate. The tax rate upon personalty, however, being fixed by the average rate throughout the Commonwealth for the preceding three years, would probably be much higher. If in the following year the expenses of the town were greatly increased, the local tax rate would necessarily be increased; but this would not affect the rate on personalty, which would have been fixed by the Commonwealth rates for the preceding three years. The following year the Commonwealth rate would be slightly increased, because of the increase in the local rate; but, unless the increase in the local rate extended throughout the Commonwealth, the increase in the rate of taxation for personal estate would be hardly noticeable. Not only would the burden of the greater increased expenses of the town fall almost entirely upon real estate, but the rate upon personalty would hardly be affected either in the year when the expenses were increased or in any subsequent year.
An act might prescribe the place in which personal property may be taxed, within reasonable limits. See Northampton v. County Commissioners, 145 Mass. 108. But this act cannot, in my opinion, be said to deal merely with the place at which personal property is to be taxed, and, even if it could, the objec
tion is still valid that the rate of tax bears no relation to the amount to be raised.
In my opinion, therefore, the proposed act is unconstitutional.
St. 1909, c. 486, which established a new charter for the city of Boston, providing, in section 9, that heads of all departments of such city shall be recognized experts in such work as may devolve upon the incumbents of such offices, or persons specially fitted by education, training or experience to perform the same, and shall be appointed without regard to party affiliation; and, in section 10, that in making such appointments the mayor shall sign a certificate of appointment and file the same with the city clerk, who shall thereupon forward a certified copy to the Civil Service Commission, who shall make a careful inquiry into the qualifications of the nominee under such rules as they may establish, with the consent of the Governor and Council, and, if they find such qualifications sufficient to meet the requirements of the law, such commission shall file a certificate with the city clerk stating that they have made the requisite examination and that they approve the appointment; and, in section 62, that all acts and parts of acts so far as inconsistent with such act are repealed, - does not repeal the provisions of St. 1909, c. 382, authorizing the Civil Service Commissioners to prepare a rule, to be approved by the Governor and Council, for including within the classified service all principal or assistant sealers of weights and measures holding office by appointment under any city or town of over ten thousand inhabitants, "whether such officers are heads of principal departments or not; and the latter statute is still applicable to sealers of weights and measures in the city of Boston.
The Civil Service Commission asks my opinion on the following:
Under chapter 382 of the Acts of 1909, the Civil Service Commissioners are authorized to prepare a rule, which shall take effect when approved by the Governor and Council in the manner provided by law, for including within the classified service all principal or assistant sealers of weights and measures, etc., "whether such officers are heads of principal departments or not." This act was approved May 13, 1909, and took effect on its passage.
Under this act the commission prepared a rule, as follows, which went into operation Sept. 1, 1909:
All principal or assistant sealers of weights and measures holding office by appointment under any city, or any town of over ten thousand inhabitants, whether such officers are heads of principal departments or not, and also the inspectors of weights and measures of the Commonwealth.
By decision of the Supreme Judicial Court, the civil service rules, when duly in force, have the effect of statute law.
Under section 9 of chapter 486 of the Acts of 1909 (the city charter of Boston), it is provided that heads of all departments of the city of Boston shall be recognized experts in such work as may devolve upon the encumbents of the offices, or persons specially fitted by education, training or experience to perform the duties; that they shall be appointed without regard to party affiliations or residence at the time of appointment.
Under section 10 of the act, it is provided that in making appointment the mayor shall sign a certificate, etc., and that the Civil Service Commission shall make careful inquiry into the qualifications of the nominee, under such rules as they may with the consent of the Governor and Council establish; and if the applicant is qualified under the requirements of the law, the commission shall file with the city clerk a certificate, signed by at least a majority of the commissioners, that they have made careful inquiry into the qualifications of the appointee, and that in their opinion he is qualified by education, training or experience, etc., for said office.
By the provisions of section 62 of the city charter, it is provided that all acts and parts of acts, so far as inconsistent with this act, are hereby repealed.
Sections 1 to 14 (including sections 9 and 10), by the provisions of section 63 of the city charter act, took effect on the first Monday of February, 1910.
Section 62 of the city charter took effect June 11, 1909.
Questions. First: are the provisions of said chapter 382 of the Acts of 1909 inconsistent with the provisions in the city charter above referred to, and is said chapter 382, and the civil service rule prepared thereunder, repealed so far as relates to the principal sealer of weights and measures of Boston?
Second: if not, is it sufficient if the commission, in filling a vacancy in the position, shall hold a competitive examination of applicants under the provisions of the civil service rules, or is the commission obliged also to make careful inquiry and certificate of qualifications, as required by section 10 of the city charter?
The question submitted is, whether section 9 of chapter 486 of the Acts of 1909 repealed chapter 382 of the Acts of 1909.
The general rule relative to repeal of acts is stated in Black on the Interpretation of Laws, p. 116. See also Endlich on Interpretation of Statutes, §§ 223, 225, 228. Chief Justice Shaw, in Brown v. Lowell, 8 Met. 172, summarizes the rule as follows:
In general, we should think it would require pretty strong terms in the general act, showing that it was intended to supersede the special acts, in order to hold it to be such a repeal.
See, also, Copeland v. Springfield, 166 Mass. 498, and cases cited.
In Brooks v. Fitchburg & Leominister Ry. Co., 200 Mass. 8, 17, Mr. Justice Rugg says:
The principle of interpretation is well established that statutes alleged to be inconsistent with each other, in whole or in part, must be so construed as to give reasonable effect to both, unless there be some positive repugnancy between them.
The force of this rule is not diminished even when the general act contains a clause repealing acts inconsistent with it. See Endlich on Interpretation of Statutes, § 223.
With this rule in mind, I am of opinion that section 9 of chapter 486 of the Acts of 1909 did not repeal chapter 382 of the Acts of 1909. Both acts were under consideration by the Legislature at the same time. The act to include sealers and inspectors of weights and measures within the classified civil service was approved May 13, while the act for the city charter of Boston was approved June 11, 1909, to take effect on the first Monday of February, 1910, so far as section 9 is concerned. Section 62 of chapter 486 of the Acts of 1909 repealed all acts and parts of acts so far as inconsistent with that act; but it does not seem to me that by these words it was intended to repeal a general act which had been enacted less than a month before the approval of this special act, without expressly repealing it. Chapter 382, being a general law applying to all cities and to towns having a population of more than ten thousand, it seems
to me is still in force; and that the rule made by your commission, which went into operation Sept. 1, 1909, is still in force, and applies to the city of Boston as well as to other cities and such towns, and is not inconsistent with the provisions of the city charter, and must be construed so as to give reasonable effect to both that statute and to chapter 382. I think it sufficient if the commission, in filling a vacancy in the position, hold a competitive examination of applicants under the provisions of the civil service rules, and proceed as is usual in such
CONSTITUTIONAL LAW TAXATION INCOME TAX.
A general income tax, imposed upon the income from real and personal property, as well as upon income from annuities and from professions, trades and employments, which is in addition to and not in substitution for existing taxes, would probably be held unconstitutional as a property tax, as not being within the requirement of the Constitution of Massachusetts, part II,, section I., Article IV., that taxes shall be "proportional and reasonable," upon the ground that thereby a greater burden is imposed upon property from which income is derived than upon property of equal value from which no income is derived, and would be unconstitutional as an excise tax for the reason that the mere right to own and hold property cannot be made the subject of an income tax.
In behalf of the committee on taxation, you submit for my To the Comconsideration the following question: "Is it possible to frame Taxation. a general income tax bill that will be compatible with our State May 11. Constitution?"
I assume that by a "general income tax" you mean a tax upon the income from real and personal property, as well as upon income from annuities and from professions, trades and employments. I further assume that you desire my opinion as to the validity of such a tax in addition to existing taxes, and not in substitution therefor.
There are undoubtedly certain forms of income which are, by reason of our federal form of government, exempt from taxation by the State. I refer to salaries of federal officials (Dobbins v. Commissioners of Erie County, 16 Pet. 435) and interest upon federal securities. See Weston v. City Council of Charles