Commonwealth v. Lancaster Savings Bank

• Decision Date: 03 January 1878
• Citation: 123 Mass. 493
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Commonwealth, by Commissioner of Savings Banks, v. Lancaster Savings Bank, William H. McNeil & others, receivers, petitioners

123 Mass. 493

Commonwealth, by Commissioner of Savings Banks, v. Lancaster Savings Bank, William H. McNeil & others, receivers, petitioners

Supreme Court of Massachusetts

January 3, 1878

Argued October 23, 1877

Worcester. Petition in equity, filed April 26, 1877, alleging that on December 22, 1875, the defendant corporation was temporarily enjoined from doing any further business; that on December 30, 1875, by a decree of this court, the injunction was made perpetual and the petitioners were appointed receivers to wind up the affairs of the corporation, and immediately entered upon the discharge of their duties; that the corporation was permitted to continue its organization only to do such acts as the petitioners in the performance of their duties might request of its officers in settling its affairs, and was deprived of the privilege of transacting the business for which it was incorporated and the right to use and exercise its franchise as a savings bank and of the profits and benefits to be derived therefrom; that the treasurer of the Commonwealth had called upon the corporation to make a return of the amount of its deposits on May 1 1876, and of the average amount of its deposits for the six months preceding May 1, 1876, and claimed from the corporation the payment of a tax of three quarters of one per cent. under the St. of 1868, c. 315, on the amount of its deposits, to be assessed on the average amount of its deposits for the six months preceding May 1, 1876, and had made a demand upon the petitioners for the payment of such tax; and that the corporation had not made such return, nor had any assessment of such tax been made by such treasurer.

The prayer of the petition was for the instructions of the court as to whether the claim was valid against the corporation or the petitioners, or whether the petitioners should pay the amount of the tax to the treasurer of the Commonwealth, or whether the corporation was now required by law to make the returns required by the St. of 1862, c. 224, §§ 8, 9, or liable to the penalties of § 11, and the St. of 1867, c. 52, for neglecting to make such returns or pay such taxes, or whether it was the duty of the president and treasurer of the corporation to make application to the petitioners for the use of the books of the corporation in their possession in making such return, or whether it was the duty of the petitioners to grant access to the books to such officers for that purpose.

Service was made upon the Attorney General, who appeared and admitted the truth of the facts stated in the petition; and the case was heard upon these facts by Gray C. J., who made a decree that the corporation was not required to make such returns, and was not liable for the tax claimed by the treasurer of the Commonwealth, that the claim of the treasurer was not valid, and that it was not their duty to grant access to the books of the corporation to its officers to enable them to make such returns, and directing them not to pay the tax to the treasurer of the Commonwealth.

From this decree the Attorney General appealed to the full court.

Decree affirmed.

E. A. Kelly, for the petitioners, was stopped by the court.

W. C. Loring, Assistant Attorney General, for the Commonwealth.

Endicott, J. Lord & Soule, JJ., absent.

OPINION

Endicott, J.

The Constitution of the Commonwealth provides, that the Legislature may impose and levy reasonable duties and excises upon any produce, goods, wares, merchandise and commodities whatsoever, brought into, produced, manufactured or being within the state. Const. Mass. c. 1, § 1, art 4. A duty or excise may thus be exacted not merely upon certain articles produced or brought into the state, but also upon any commodities whatsoever. "Commodity" is a general term, and includes the privilege and convenience of transacting a particular business; and, upon persons carrying on such business, it has never been questioned that the Legislature may levy an excise, or provide that a license must be obtained in order to transact it. See Gen. Sts. c. 50. And, when a number of persons are incorporated by the Legislature for a special purpose, or, being incorporated by another state, have an office or place of business within the Commonwealth, upon the franchise thus conferred or exercised, an excise may be laid. Portland Bank v. Apthorp, 12 Mass. 252. ...