ton, 2 Pet. 449; Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429; 158 U. S. 601. Such income would be exempt from a general income tax, though not expressly excepted therefrom.

The Constitution of this Commonwealth contains two provisions authorizing taxation, which are to be found in Part II., chapter 1, section 1, article IV. The General Court is authorized 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; and also to impose and levy reasonable duties and excises upon any produce, goods, wares, merchandise, and commodities, whatsoever, brought into, produced, manufactured, or being within the In substance, the first provision authorizes proportional and reasonable taxes upon property; the second, reasonable excises upon privileges.

same;

The statutes now provide that "personal estate for the purpose of taxation shall include: . . The income from an annuity, and the excess above two thousand dollars of the income from a profession, trade or employment" during the preceding year, but that "incomes derived from property subject to taxation shall not be taxed." St. 1909, c. 490, part I., § 4. This provision in substantially the same form is found in all the codifications of the general tax laws of the Commonwealth. R. S., c. 7, § 4; Gen. Sts., c. 11, § 4; Pub. Sts., c. 11, § 4; R. L., c. 12, § 4. Prior to the passage of a general tax act, both before and after the adoption of the Constitution, a similar provision was usual to the annual tax acts.

The constitutionality of the existing provision for taxation of incomes has not been expressly affirmed, but the justices of the Supreme Judicial Court, in the Opinion of the Justices, 195 Mass. 607, seemed to assume its validity. They say, at page 610:

It is proper that one's income, to a reasonable amount, should be treated as necessarily consumed for the support of himself or of his family, so that only the excess above such amount should be regarded as property increasing his ability to pay taxes.

But on page 612 say further that:

The constitutionality of some of the statutes to which we have referred has not been affirmed, and may be questionable. But nearly all of them are consistent with the view that all available property should be taxed according to its value, for the purpose of establishing the proportional ability and duty of individual owners to bear their burdens as citizens.

The natural conclusion from this language of the justices is not only that the tax is constitutional, but that it is constitutional as a tax upon property. This conclusion is in accord with the form of the statute which provides, as I have stated, that personal property shall include certain incomes. In two cases (Melcher v. Boston, 9 Met. 73, and Wilcox v. County Commissioners, 103 Mass. 544) the income tax was before the court, but the decisions do not help us in this inquiry.

If the existing tax on incomes is a property tax, there is even more reason for considering a tax upon incomes derived directly from property to be a property tax. A majority of the United States Supreme Court, in the Income Tax Cases (Pollock v. Farmers' Loan & Trust Co., supra), held the federal tax on incomes from real and personal property to be a direct tax on such real and personal property.

Assuming that a general income tax is a tax on property, its constitutionality depends, of course, upon whether it is proportional and reasonable. I see no reason why a general income tax bill could not be framed which would be reasonable. Whether such a tax would be proportional is a more difficult question. If the property, real or personal, has once been taxed as such, a tax on the income therefrom will result in double taxation. This, of itself, though perhaps theoretically objectionable, is not necessarily constitutionally objectionable. Frothingham v. Shaw, 175 Mass. 59, 61. Where, however, double taxation results in disproportionate taxation, it is constitutionally objectionable. There is much reason to believe, although there is no decision thereon, that the imposition of a tax on incomes from property otherwise taxable would be regarded as unconstitutional, on the ground that thereby a greater

To the Committee on

burden is imposed upon property from which income is derived than upon property of equal intrinsic value from which no income is derived.

If a general income tax cannot be sustained as a tax on property, it probably cannot be sustained at all. It was pointed out in the Opinion of the Justices, 195 Mass. 607, 614, that "the mere right to own and hold property such as is referred to in the question [the question being in regard to certain forms of personalty] cannot be made the subject of an excise tax." The same principle must apply to the right to own and hold realty and other forms of personalty. A tax upon income from property construed as an excise, it seems to me, would be nothing more than an excise on the privilege of holding such property, and, in accordance with this expression of opinion of the justices, would be unconstitutional.

I have stated to you certain conclusions, but there is no authoritative decision upon this question in this Commonwealth, and, before the enactment of so important a measure, it would be most desirable that the opinion of the justices of the Supreme Judicial Court be asked.

WATER SUPPLY GREAT PONDS

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STATE BOARD OF HEALTH CONTROL AND REGULATION - WRIGHT'S POND AND ASHLEY'S POND IN THE CITY OF HOLYOKE - REGULATION OF PUBLIC RIGHTS.

The State Board of Health, under the provisions of R. L., c. 75, § 112, and § 113 as amended by St. 1907, c. 467, vesting in such board the "oversight and care of all inland waters and of all streams and ponds used by any city, town or public institution . . . as sources of water supply," and providing that it may regulate and control the exercise of the public rights of fishing, boating, skating or taking ice, and may delegate the power of granting or witholding permits to the local authority, may regulate the exercise of such public rights on Wright's Pond and Ashley's Pond in the city of Holyoke, used by said city as a source of water supply under the provisions of St. 1872, c. 62, provided such regulation or prohibition is reasonably necessary to secure the sanitary protection thereof.

On behalf of the committee on water supply, you inquire Water Supply. Whether or not, under existing laws, the State Board of Health

1910 May 12.

now has authority to regulate or prohibit the public use of a

great pond, and to delegate the enforcement of such regulation or prohibition to the authorities of a city or town. In connection with such inquiry you have submitted to me a draft of a proposed act, entitled, "An Act relative to public rights in Ashley's Pond and Wright's Pond in the city of Holyoke," and have directed my attention to the second section of such draft which is as follows:

Fishing, boating, skating or riding upon the ice, taking water for domestic purposes or the arts, the cutting or harvesting of ice, and all other uses of the waters of said ponds, except under such regulations as may be established by the board of water commissioners of said city of Holyoke after the passage of this act, shall be unlawful; and any person who shall be found guilty of fishing, boating, skating or riding upon the ice, taking water for domestic purposes or the arts, or cutting or harvesting ice, shall be liable to a fine of not less than ten nor more than fifty dollars for each offence.

By section 2 of chapter 62 of the Statutes of 1872, the town of Holyoke was authorized "to take and hold the entire waters of Ashley's and Wright's ponds, so called" (which I assume to be great ponds), "and the waters which flow into and from the same, and also the waters of such brooks as may be conveniently diverted and conducted into said ponds," with other powers necessary or convenient for the purpose of supplying such town with pure water. It is fair to assume, although it does not appear, that the authority so conferred was exercised by the town, and that all the rights or interests acquired thereunder are now held and enjoyed by the city of Holyoke.

The authority of the State Board of Health in the premises is derived from R. L., c. 75, § 112, and § 113 as amended by St. 1907, c. 467. Section 112 vests in the State Board of Health the general oversight and care of all inland waters, and of all streams and ponds used by any city, town or public institution or by any water or ice company in this Commonwealth, as sources of water supply, and of all springs, streams and water courses tributary thereto.

The power and authority of the State Board of Health to protect sources of water supply by reasonable rules and regulations

is both comprehensive and conclusive, and often has been exercised under this or similar provisions of law. Sprague v. Dorr, 185 Mass. 10; Nelson v. State Board of Health, 186 Mass. 330.

If, in the discretion of that Board, the proper protection of the purity of a source of water supply requires that the public be regulated and controlled in its use of a great pond whose waters form a part of such source of supply, or that the public use be discontinued altogether, it would undoubtedly be within the authority of such Board to make reasonable rules and regulations for that purpose. See Sprague v. Minon, 195 Mass. 581. In other words, the Board may take such measures as are reasonably necessary to secure the proper sanitary protection of a source of water supply, notwithstanding that thereby the use by the public of a great pond which is a part of such water supply may be greatly impaired and restricted, or even entirely destroyed.

Replying specifically to the question of the committee, therefore, it is my opinion that, under the provisions of R. L., c. 75, § 113, as amended by St. 1907, c. 467, the State Board of Health may regulate and control the exercise of the public rights of fishing, boating, skating on or taking ice from Ashley's Pond and Wright's Pond, even to the extent of prohibiting them altogether; and may delegate the power of granting or withholding any permits which may be required by the rules and regulations made for such purpose to the board of health, or the water board, or the water commissioner, as the case may be, of the city of Holyoke. This authority, however, must be predicated upon a determination by the State Board of Health that the exercise of the public rights regulated or prohibited endangers the purity of the waters of such ponds as a source of water supply and that such regulation or prohibition is reasonably necessary to secure the sanitary protection thereof.