years 1910, 1911 and 1912 a smaller rate is fixed; and section 4 exempts from local taxation deposits taxed under the provisions of that act. St. 1908, c. 590, § 46, as amended, referred to in the bill, permits savings banks to "receive on deposit from any person not more than one thousand dollars," and to allow interest thereon, "and upon the interest accumulated thereon, until the principal, with the accrued interest, amounts to two thousand dollars." See St. 1909, c. 491, § 7. The effect of the bill, if enacted and valid, would be to impose upon all or certain of the deposits in the national bank an annual tax of not more than one half of one per cent. It is not necessary for me to consider the construction of the act, since upon any construction it is, in my opinion, invalid upon fundamental grounds.

The Constitution of this Commonwealth contains two provisions authorizing taxation, which are to be found in Part II., c. I., § I., Art. 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 same; . . In substance, the first provision authorizes proportional and reasonable taxes upon property; the second, reasonable excises upon privileges.

Section 5219 of the Revised Statutes of the United States "is the measure of the power of a State to tax national banks, their property or their franchises. By its unambiguous provisions the power is confined to a taxation of the shares of stock in the names of the shareholders and to an assessment of the real estate of the bank. Any state tax therefore which is in excess of and not in conformity to these requirements is void." Owensboro National Bank v. Owensboro, 173 U. S. 664, 669. See also Third National Bank of Louisville v. Stone, 174 U. S. 432.

The tax sought to be imposed by the bill in question would be unconstitutional as a tax upon the property of the depositors

or upon the property of the bank because not proportional (Opinion of the Justices, 195 Mass. 607); and as a tax upon the property of the bank would be void because in conflict with the federal statute referred to. It would be unconstitutional as an excise upon the privileges of the depositors, for the depositors are merely owners of money on deposit, that is, creditors of the bank, and "the mere right to own and hold property" such as this "cannot be made the subject of an excise tax" (Opinion of the Justices, supra, p. 614); and would be void as an excise upon any privilege of the bank, because in conflict with the federal statute referred to. The tax cannot in any view be considered as a tax on the "shares of stock in the names of the shareholders" or "an assessment of the real estate of the bank." See Owensboro National Bank v. Owensboro, supra.

CITIZEN VOTERS FORMATION OF CREDIT UNION.

Under the provision of St. 1909, c. 419, § 3, that ". seven or more citizens of this
commonwealth who have associated themselves by an agreement in writing
for the purpose of forming a credit union, may . . .
. . become a corporation
.," the persons signing such agreement need not be voters.

Commissioner.

ap-1911

May 24.

By your letter of May 23 you require my opinion "as to To the Bank whether the law (St. 1909, c. 419, § 3) requires all of the plicants for a credit union to be citizens in the sense that they must be voters."

Seven or more citizens of this commonwealth who have associated themselves by an agreement in writing for the purpose of forming a credit union may, with the consent of the board of bank incorporation, become a corporation upon complying with all the provisions of section three of chapter one hundred and fourteen of the Revised Laws, except those which relate to the limit of capital to be accumulated.

Your letter states you have before you an agreement of association signed "by seven applicants, only five of whom are naturalized citizens of this Commonwealth." I assume the two remaining applicants are unnaturalized aliens.

The language of the section above quoted is explicit and requires that all the parties to the agreement therein provided for must be citizens of the Commonwealth. An unnaturalized alien is not a citizen of the United States, and therefore cannot become even by residence a citizen of the Commonwealth. It follows that the board of bank incorporation may not consent to the formation of a corporation by such applicants.

Replying to your specific inquiry, however, I have to advise you that the act does not require that citizens who may associate themselves for the purpose of forming a credit association should be voters. A citizen is not necessarily a voter.

MERCANTILE ESTABLISHMENT

PREMISES OF TELEGRAPH

To the

Chief of the

District Police.

1911

May 31.

COMPANY.

Premises maintained by a telegraph company do not constitute a mercantile establishment within the provision of St. 1909, c. 514, § 17, that, mercantile establishments' shall mean any premises used for the purpose of trade in the purchase or sale of any goods or merchandise, and any premises used for the purposes of a restaurant or for publicly providing and serving meals.”

upon

By a communication dated May 19 you request my opinion the question whether or not the Postal Telegraph Company and similar corporations are to be considered as mercantile establishments, and therefore as coming within the provision of St. 1909, c. 514, § 56, that "no child under the age of fourteen years, and no child who is over fourteen and under sixteen years of age who does not have a certificate as required by the four following sections . . . shall be employed in any factory, workshop or mercantile establishment."

The act in which the above provision of law is found is a codification of the laws relating to labor, and in section 17 certain words and phrases as used in such codification, including the phrase "mercantile establishments," are defined. The provision is as follows:

"Mercantile establishments" shall mean any premises used for the purposes of trade in the purchase or sale of any goods or merchandise, and any premises used for the purposes of a restaurant or for publicly providing and serving meals.

I am of the opinion that the premises maintained by the Postal Telegraph Company are not used for the purposes of trade in the purchase or sale of any goods or merchandise, or for the purposes of a restaurant or for publicly providing and serving meals. It follows, therefore, that such premises are not to be considered as a mercantile establishment.

HOURS OF LABOR-VACATIONS-PERSONS EMPLOYED AT STATE
HOUSE GOVERNOR GOVERNOR AND COUNCIL.

Neither the Governor nor the Governor and Council have any power to determine
the hours of labor or the length of vacations for persons employed at the
State House.

Governor.

June 1.

You have requested my opinion as to "what power, if any, To the the Governor or the Governor and Council have with regard 1911 to determining the hours of labor for employees at the State House, and with regard to the length of their vacations."

In my opinion neither the Governor nor the Governor and Council have any power in regard to the hours of labor for employees at the State House, or in regard to their vacations, except so far as they may have power over employees in the executive department. The hours of labor of the different employees are to be determined, in my opinion, by the head of the department in which such employee is employed. So long as such heads of departments act reasonably there is apparently no authority in any one to interfere.

I am aware that on July 15, 1872, the Council adopted the following order:

Ordered, That all persons employed in the various departments in the State House shall be on duty daily from 9 o'clock A.M. to 4 o'clock P.M., with an intermission of one hour for dinner; and that a vacation not longer than one month be allowed to each employee.

This was apparently adopted under authority of St. 1866, c. 67, which gave to the Executive Council the right to fix the office hours of the departments. This statute, however, was repealed by St. 1879, c. 236.

To the
Governor.
1911
June 1.

Under the provision of the Constitution of the Commonwealth, Part II., c. I., § I., Art. II., that "if any bill or resolve shall not be returned by the governor within five days after it shall have been presented, the same shall have the force of a law," the governor is to be allowed five full days, beginning at 12 o'clock midnight next following the time when the bill is presented, in which to exercise his right either to signify his approval by signing such bill or to return it with his objections in writing to the Senate or House of Representatives.

In computing such period of five days, Sunday is to be excluded and holidays included.

I have the honor to reply to the inquiry of Your Excellency, transmitted to me through your secretary, whether or not, under the provision of the Constitution of the Commonwealth, Part the Second, Chapter I., section I., Article II., "if any bill or resolve shall not be returned by the governor within five days after it shall have been presented, the same shall have the force of a law," the five days may be construed to begin upon midnight of the day on which the bill is presented to the Governor, exclusive of Sundays and holidays.

I am of opinion that in acting under the constitutional provision above quoted the Governor is to be allowed five full days, beginning at 12 o'clock midnight next following the time when the bill is presented, in which to exercise his right either to signify his approval of such bill by signing it or to return it with his objections, in writing, to the Senate or House of Representatives, and that in the computation of such periods of five days Sundays are to be excluded.

With reference to the question of holidays, I have not been able to find any judicial decisions on the point. It is a general rule, however, that anything may be legally done on a holiday which is not expressly prohibited, and that as to the legality of business done, holidays are different from Sundays. My conclusion from the cases I have examined on this point is that in the case of Sunday it is to be inferred that no work shall be done, but that in the case of a holiday any work may be done which is not prohibited by law. There is no prohibition upon