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of the legal voters of the town or governing board of a city where such land is located.

I am of opinion that the bill, if enacted, will be constitutional and valid. My reasons for this view follow.

The property of institutions for the care of the insane is now exempted from taxation so far as it is included within the provisions of St. 1909, c. 490, part I., § 5, cl. 3, which exempts from taxation

The personal property of literary, benevolent, charitable and scientific institutions and of temperance societies incorporated within this commonwealth, the real estate owned and occupied by them or their officers for the purposes for which they are incorporated, and real estate purchased by them with the purpose of removal thereto, until such removal, but not for more than two years after such purchase. Such real or personal property shall not be exempt if any of the income or profits of the business of such corporation is divided among the stockholders or members, or is used or appropriated for other than literary, educational, benevolent, charitable, scientific or religious purposes, nor shall it be exempt for any year in which such corporation wilfully omits to bring in to the assessors the list and statement required by section forty-one.

The effect of the bill in question, if enacted, will be to exclude from this exemption land thereafter acquired by an institution for the care of the insane, unless at the time such land is acquired the city or town within which it is situated votes that it shall be exempt from taxation.

The constitutional provision relative to the taxation of land requires that taxes shall be reasonable and proportional. Const. Mass., Part 2, c. I., § 1, Art. IV. It is now too late to argue that this provision prohibits exemptions. Day v. Lawrence, 167 Mass. 371. "We have . . . constitutional requirements for the encouragement of literature and science, the diffusion of education among the people, and the promotion of 'general benevolence, public and private charity' and other kindred virtues. (Const. Mass., c. 5, § 2.) As taxation of the people may be imposed for these objects, property used for literary, educational, benevolent, charitable or scientific purposes may

well be exempted from taxation. Such exemptions do not prevent the taxation of the people from being proportional and equal." Opinion of the Justices, 195 Mass. 607, 608-9.

The questions raised by you are, therefore:

1. Whether land held by an institution for the care of the insane may be excepted from the provision for exemption applicable to property of charitable institutions generally.

2. Whether, if such land may be so excepted, the Legislature may delegate to the cities and towns in which the land lies the power of determining whether specific land thereafter acquired by an institution for the care of the insane, charitable in its nature, shall be included within the exemption applicable to land owned by charitable institutions generally.

The only limitation upon exemptions is that they must be reasonable. See Minot v. Winthrop, 162 Mass. 113, 124. The purpose for which they are made must be proper. See Opinion of the Justices, supra. They must not be "such as to render the general tax on property throughout the Commonwealth unequal and disproportionate." See Commonwealth v. People's Five Cents Savings Bank, 5 Allen, 428, 437. It is, however, "peculiarly within the discretion of the Legislature to determine what exemptions should be made in apportioning the burdens of taxation among those who can best bear them." Minot v. Winthrop, supra. Even if it was required that all persons or institutions similarly situated be treated alike, the Legislature could undoubtedly find that there was a reasonable ground for distinguishing between land and other property, between property already acquired and property to be acquired, and between institutions for the care of the insane and other charitable institutions. The first question must, therefore, be answered in the affirmative.

The question as to whether the Legislature may delegate to the cities and towns in which the land lies the power of determining whether specific land thereafter acquired by an institution for the care of the insane, charitable in its nature, shall be included within the exemption applicable to land owned by charitable institutions generally, in turn divides itself into two,

namely: (a) Whether the State may make such a special exemption; and (b) if the State may do so, whether it may delegate the power to make such special exemptions to the cities and towns in which the property is respectively situated. Both must, in my opinion, be answered in the affirmative.

Since the adoption of the Constitution, and before, the Legislature has made such exemptions and has limited general exemptions in particular cases. See for a collection of statutes House Document, 1910, No. 1395, appendix B; Phillips Academy v. Andover, 175 Mass. 118. These statutes have been considered by the court, though their validity seems not to have been discussed. See Harvard College v. Kettell, 16 Mass. 204; Hardy v. Waltham, 7 Pick. 108; Phillips Academy v. Andover, supra; Rice v. Bradford, 180 Mass. 545; Evangelical Baptist Society v. Boston, 192 Mass. 412. In Northampton v. County Commissioners, 145 Mass. 108, the court affirmed the constitutionality, in certain aspects, of a special statute in regard to the taxation of a particular charity. Long acquiescence, therefore, furnishes a strong reason for supporting special exemptions of particular charitable institutions, in the absence of clear objections thereto. There is, however, in my judgment, no objection on constitutional grounds to such statutes. As already stated, the justification for a special exemption of a charitable institution is, that since taxation may be imposed for the purposes for which such institution is organized, the property used for such purposes may be exempted from taxation. The Legislature may undoubtedly appropriate money raised by taxation for the use of one charitable institution without making an appropriation for the use of others of the same class. The same result is accomplished indirectly by specifically exempting from taxation the property of such institution. The propriety of such legislation seems to have been recognized by the Supreme Court of the United States. Grand Lodge v. New Orleans, 166 U. S. 143, 149; see, however, Baltimore City v. Starr Church, 106 Md. 281.

As the Legislature may make such a special exemption, so it may delegate the power to do so. The Legislature may dele

To the House of Representatives.

1911

April 22.

gate to cities and towns legislative power over subjects which are proper for municipal control. Stone v. Charlestown, 114 Mass. 214; Opinion of the Justices, 160 Mass. 586, 590; Brodbine v. Revere, 182 Mass. 598, 600. It has delegated many powers relating to taxation. In Merrick v. Amherst, 12 Allen, 500, the court sustained as constitutional a statute authorizing a town to raise money by taxation for an agricultural college to be established therein by the Commonwealth. It would seem that the exemption from taxation of the property of an institution which was used for a public purpose might equally well be delegated. See Caverly-Gould Co. v. Springfield, 83 Vt. 396, 403. The language to the contrary in Brewer Brick Co. v. Brewer, 62 Me. 62, has been criticised. In Gray on Limitations of Taxing Power, p. 292, the author says:

Inasmuch as the delegation of power to municipalities to impose taxes and to fix the rate is so integral a part of the governmental system, it cannot be believed that constitutional requirements of uniformity were intended to prohibit such delegations of power. And if this be so, the Maine decision seems unfounded.

CONSTITUTIONAL LAW FREE TRANSPORTATION OF LETTER
CARRIERS IN UNIFORM ON STREET RAILWAYS - SAFETY,
HEALTH OR PROPER CONVENIENCE OF THE PUBLIC.

A statute requiring street railway companies to carry free on their passenger cars United States letter carriers in uniform in the city or town in which such letter carriers are employed, does not tend to promote the safety, health or proper convenience of the public, but is an arbitrary enactment in favor of the persons designated, letter carriers in uniform, and, as such, is unconstitutional and void.

I have the honor to acknowledge the receipt of an order adopted by the Honorable House of Representatives on the twenty-fourth day of March, 1911, which is as follows:

Ordered, That the Attorney-General be requested to inform the House of Representatives whether, in his opinion, a statute requiring street railway companies to carry free on their passenger cars United States letter carriers in uniform, in the city or town in which they are employed, would be constitutional and valid.

Under date of April 10, 1901, Attorney-General Knowlton advised the Honorable Senate that a bill requiring transportation of letter carriers at a rate less than that collected from ordinary passengers was in his opinion unconstitutional so far as it concerned the Boston Elevated Railway Company, on the ground that such bill, if enacted, would impair the obligation of the contract contained in the charter of that company. 2 Op. Atty.-Gen. 261. This opinion was undoubtedly correct, and is applicable with equal or greater force to a statute such as is described in the order above set forth.

I am, however, of opinion that such a statute would be unconstitutional as applied to street railway companies generally. The right of the Legislature to regulate fares charged by street railway companies is undoubted, but it cannot, "under pretence of regulating fares and freights," require a street railway company "to carry persons or property without reward." See Stone v. Farmers' Loan & Trust Co., 116 U. S. 307, 331. The rate fixed must be reasonable. Obviously, a requirement that any class of persons (here "United States letter carriers in uniform") be carried free is not a reasonable or proper exercise of the distinctively rate-making power.

If the statute is to be justified at all, it must be justified under the police power in its broader sense, i.e., the power to legislate "for the safety, health or proper convenience of the public." Lake Shore & Michigan Southern Ry. Co. v. Smith, 173 U. S. 684, 698, 699. Legislation for these purposes is not necessarily bad because it imposes an incidental pecuniary loss upon the carrier. Atlantic Coast Line R.R. Co. v. North Carolina Corporation Commission, 206 U. S. 1, 24, 25; Interstate Railway Co. v. Massachusetts, 207 U. S. 79, 87. It cannot, of course, be assumed that any class of persons can be carried free by a street railway company without some, though perhaps slight, pecuniary loss to the company. A requirement of such free transportation cannot be sustained under the police power unless such requirement is reasonably adapted to promote "the safety, health or proper convenience of the public." The free transportation of United States letter carriers as a class, even

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