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the commonwealth one year, and within the town or district in which he may claim a right to vote, six calendar months next preceding any election of governor, lieutenant-governor, senators, or representatives, shall have a right to vote in such election of governor, lieutenant-governor, senators and representatives; and no other person shall be entitled to vote in such elections.

The qualifications of voters being thus established, the conduct of elections may be regulated by the Legislature under Article IV. of Section I. of Chapter I. of Part the Second of the Constitution, by which full power and authority is conferred upon the General Court

from time to time to make, ordain and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth, and for the government and ordering thereof, and of the subjects of the same, and for the necessary support and defence of the government thereof;

but all legislation must be subordinate to the provisions of the Constitution already cited, and cannot add to or diminish the qualifications of a voter as therein prescribed. Kinneen v. Wells, supra, p. 499; Blanchard v. Stearns, 5 Met. 298, 301; Williams v. Whiting, 11 Mass. 424; Opinion of the Justices, 5 Met. 591, 592; Commonwealth v. Rogers, 181 Mass. 184, 186.

The power of the Legislature in the premises was well described by Chief Justice Shaw in the case of Capen v. Foster, 12 Pick. 485, at page 488, where he stated

And this court is of opinion that in all cases where the Constitution has conferred a political right or privilege, and where the Constitution has not particularly designated the manner in which that right is to be exercised, it is clearly within the just and constitutional limits of the legislative power to adopt any reasonable and uniform regulations in regard to the time and mode of exercising that right, which are designed to secure and facilitate the exercise of such right, in a prompt, orderly and convenient manner. Such a construction would afford no warrant for such an exercise of legislative power, as, under the pretence and color of regulating, should subvert or injuriously restrain the right itself.

And see, Cole v. Tucker, 164 Mass. 486.

The provision of the Constitution from which the Legislature derives the power to regulate the exercise of the right of franchise is that which confers upon the General Court the police power (see Commonwealth v. Danziger, 176 Mass. 290, 291, and cases cited), and this power must always be reasonably exercised. Commonwealth v. Bearse, 132 Mass. 542, 546; Commonwealth v. Alger, 7 Cush. 53.

From the principles above discussed, therefore, it is clear that in passing upon the constitutionality of legislation which affects the right of any person or persons to elect or to be elected to public offices created by the Constitution or laws of the Commonwealth, it is necessary to determine as a matter of fact whether or not such legislation is intended to "provide 'an easy and reasonable mode of exercising the constitutional right' " and is "calculated to prevent error and fraud, to secure order and regularity in the conduct of elections, and thereby give more security to the right itself." Commonwealth v. Rogers, 181 Mass. 184, 186; citing Capen v. Foster, supra; Kinneen v. Wells, supra; and Jaquith v. Wellesley, 171 Mass. 138, 143.

From the principles which I have already discussed it follows that the proposed amendments will be constitutional only if they are designed to afford and do afford an easy and reasonable mode of exercising the constitutional right of participating in elections, and are "calculated to prevent error and fraud, to secure order and regularity of conduct of elections, and thereby give more security to the right itself." It is to be observed that the effect of the proposed legislation, taken as a whole, is to restrict the expenditure of money or the contribution of any other valuable thing in connection with an election, by any person, whether or not such person is a candidate for public office, to travelling expenses and expenses properly incident to travel incurred by himself, and to expenses for preparing, circulating and filing nomination papers; to forbid, except in the manner designated, the conveyance of any voter to the polls except entirely at his own expense; and to require that if any person elected to office, or any member or agent of his campaign committee, or any other person acting in his or their interest or

behalf, is convicted of any violation of the law relating to corrupt practices at the primary at which such candidate was nominated or the election at which he was elected, such office shall be vacated and a new election shall be held to fill it. The provision in St. 1907, c. 560, § 316, as amended by section 1 of the proposed bill, that the act shall not apply to voluntary payments or promises of payment of money to a political committee, does not enlarge the field of permitted expenditure, for the reason that except for the purposes already enumerated no person is authorized to expend it, although the words "for the promotion of the principles of the party which it represents and for expenses properly incidental thereto" may have been intended to permit to political committees a greater freedom than is given to individuals in the premises.

The question thus presented is primarily one of fact, and therefore a proper subject for the determination of the Legislature. The enactment of the proposed amendments would have the effect of a determination by the General Court that the regulations contained therein were not in its opinion a restriction upon the exercise of the constitutional right affected, but were reasonable and necessary precautions against bribery, fraud and other improper conduct in connection with elections, and therefore a protection of the right itself, and, as such, would doubtless be entitled to great weight. See Commonwealth v. Bearse, 132 Mass. 542, 549; Commonwealth v. Alger, 7 Cush. 53, 102. So far as I am at liberty to express my views upon a question of this character, however, I am constrained to say that in my opinion, by the enforcement of such stringent regulations as those contained in the proposed bill, the right of every citizen of the Commonwealth duly qualified to elect and to be elected to public office would be seriously impaired and restricted, since under such regulations a general election held throughout the Commonwealth might be invalidated by the act of a single person in violating even some minor provision of the law relative to corrupt practices. A regulation of elections which makes possible such a result can hardly be held to be a reasonable regulation of the exercise of the right to take part in

elections, but is, rather, an injurious restraint and interference with it. For the reasons stated, therefore, I am of opinion that the proposed amendments referred to in each of the questions submitted by the Honorable Senate do not constitute a reasonable or necessary regulation of the constitutional right, are not necessary for its protection, and, if passed, would therefore be unconstitutional and void.

With respect to the second inquiry of the Honorable Senate, which refers to section 2 of the proposed bill, there is a further objection upon constitutional grounds, in that said section purports to require of certain persons otherwise qualified to vote, as a preliminary to voting, an oath relative to their physical condition, which clearly constitutes a qualification additional to those prescribed by the Constitution.

See Kinneen v. Wells, 144 Mass. 497; Rison v. Farr, 24 Ark. 161; Davies v. McKeeby, 5 Nev. 369; Green v. Shumway, 39 N. Y. 418.

CONSTITUTIONAL LAW APPROPRIATION OF MONEY RAISED BY
TAXATION-MORAL OBLIGATION-REPAYMENT OF MONEY
PAID UNDER MISTAKE OF FACT OR LAW - NEW YORK,
NEW HAVEN & HARTFORD RAILROAD COMPANY.

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The fulfilment of a moral obligation upon the Commonwealth, created by a claim growing out of general principles of right and justice and based upon considerations of a moral or merely honorary nature, such as would be binding on the conscience or honor of an individual, is a public purpose, and money raised by taxation may be appropriated therefor, although such claim could not be enforced by any legal procedure.

A proposed resolve to provide for repayment by the Commonwealth of a sum erroneously paid as taxes by the New York, New Haven & Hartford Railroad Company, if the Legislature determined that the facts submitted in connection therewith imposed upon the Commonwealth a moral obligation of the character heretofore recognized, would, if passed, be constitutional.

mittee on

1912

Your communication of March 6 states that you desire my To the Comopinion "concerning the constitutionality of the repayment of Taxation. the franchise tax for 1910 to the New York, New Haven & March 12. Hartford Railroad as set forth in House Bill No. 508." The bill to which you refer is a proposed resolve to provide for the repayment by the Commonwealth of a sum erroneously

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paid as taxes by the New York, New Haven & Hartford Railroad Company, and is as follows:

Whereas, on September fifteen, nineteen hundred and nine, the New York, New Haven and Hartford Railroad Company executed an instrument purporting to convey its real estate in Park Square in the city of Boston to Moses Williams and others, as trustees, and whereas the said trustees paid the tax on the said property levied by the city of Boston for the year nineteen hundred and ten, the said property being valued by the city at the sum of four million four hundred and seventy-two thousand dollars, and whereas on May sixteen, nineteen hundred and eleven, the supreme judicial court of the commonwealth rendered a decision that the said deed of conveyance was null and void, then making the said corporation liable to repay the said tax to the said trustees and then also entitling the said corporation to an abatement of part of the franchise tax paid to the commonwealth by the said corporation for the year nineteen hundred and ten, now, therefore, be it

Resolved, That the treasurer of the commonwealth shall pay to the said corporation a sum equivalent to the sum which would have been deducted from the franchise tax of the said corporation for the year nineteen hundred and ten, had not the said deed of conveyance been made, with interest from the date of the payment of the said tax in the year nineteen hundred and ten, until the date when this resolve takes effect.

The facts upon which your inquiry is based are substantially recited in the preamble to the proposed resolve. The New York, New Haven & Hartford Railroad Company having in its possession certain real estate formerly occupied as a station at Park Square in the city of Boston, rendered unavailable for railroad purposes by the erection of the terminal passenger station and other changes made under the provisions of St. 1896, c. 516, on Sept. 15, 1909, conveyed said real estate to certain trustees, subject to the terms, conditions and trust contained in a declaration of trust bearing the same date. These trustees, who had full power in the premises, were to develop the property and dispose of it for the benefit of the holders of shares, which, to the number of 52,000, the trustees were authorized to issue to the New York, New Haven & Hartford Railroad Company in payment for the real estate so conveyed. The tax in question was assessed and paid under the provisions of St. 1909, c. 490, part III., §§ 40-43, and as the Park Square prop

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