In re Justices

• Decision Date: 31 January 1925
• Parties: Opinion of the JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 N.E. 651

Opinion of the JUSTICES.^*

Supreme Judicial Court of Massachusetts.

January, 1925.

Answers to question propounded to the Justices of the Supreme Judicial Court by resolution of the House of Representatives.

1. Highways k99-Power to lay out, construct, and maintain highways is vested in general court under general powers.

There is no constitutional mandate requiring commonwealth or any of its territorial subdivisions to establish and maintain highways for public travel, whole subject of laying out, constructing, and repairing them being vested in general court under its general powers.

2. Licenses k1-Power to take instrumentalities for public travel and charge toll does not involve power of taxation.

Power of government to take, acquired, and construct instrumentalities for public travel and to charge toll, rental, or other recompense therefor, in so far as tolls or rentals are based on fair recompense for public moneys expended for construction and maintenance, does not involve power of taxation.

3. Evidence k5(2)-Common knowledge that number of motor vehicles exceeds all others and different highway construction is required for their convenience.

It is matter of common knowledge that number of motor vehicles exceeds all others and that different highway construction as to durability and smoothness is required for their convenience.

4. Licenses k7(2)-Apparent inequalities of excise tax held not so great as to invalidate act licensing use of automobiles on highways.

That act requiring annual fee for privilege of operating motor vehicles on public ways charges no toll for use of highways by other vehicles and contains no general provision as to foreign owned motor vehicles, does not, as matter of law, invalidate classification.

5. Licenses k5-General court may levy excise as toll for use of public ways by motor vehicles.

It is within constitutional power of general court to levy excise as toll for use of public ways by motor vehicles.

6. Licenses k7(1)-Excise on motor vehicles, based on maker's price list, held not invalid.

Excise based in part on value of motor vehicle using highway which made maker's current price list basis of excise, held not to involve infraction of constitutional guaranties.

7. Licenses k7(8)-Levying of tax for ownership of motor vehicles held not to invalidate excise for use thereof.

Levying property tax on motor vehicles, under G. L. c. 59, s 2, Const. pt. 2, c. 1, s 1, art. 4, does not prevent levy of excise concerning use by motor vehicles of highways.

8. Licenses k3-License fee may be exacted as part of or incidental to exercise of police power.

A license fee may be exacted as part of or incidental to regulations established in exercise of police power.

9. Licenses k1-Fee required in exercise of police power is distinct from tax depending on constitutional limitations governing taxation.

A fee which lawfully may be required in exercise of police power is distinct from a tax which depends for its validity on constitutional limitations governing taxation.

10. Licenses k7(8)-When assessment of two excise taxes on same commodity would be unreasonable stated.

Assessment of two excise taxes, even though each be on separate basis and collected by different officers, for enjoyment or use of one commodity for same period of time would be unreasonable.

11. Licenses k7(8)-Excise on use of automobile on highway held sufficiently different as to commodity from excise on registration as not to be invalid.

While excise on use of motor vehicles on highways is closely akin to excise of registration thereof, under G. L. c. 90, it is sufficiently different as to commodity on which it is levied to avoid constitutional inhibition, it not being obnoxious to principle against double taxation.

12. Licenses k7(1)-Excise on use of automobile on highway held not invalid within federal Constitution.

Act providing excise on use of public ways by motor vehicles held not to violate United States Constitution.

To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit this answer to the question set forth in the order of May 9, 1924, and transmitted on May 14, 1924. That question is in these words:

‘May the General Court, under the provisions of the Constitution empowering it to impose and levy reasonable duties and excises, or under any other provision of the Constitution, impose and levy an excise upon the use of public ways by motor vehicles, measured in part by the value of such motor vehicles, and subject to a deduction on account of the value locally assessed on such motor vehicles?’

Our opinion is required with reference to a proposed statute, copy of which accompanies the order. It is entitled, ‘An act to provide an excise on the use of the public ways by motor vehicles.’ It is provided by section 1 that every inhabitant of the commonwealth shall pay annually for each calendar year with respect to each motor vehicle owned by him, twenty mills if less than thirty horse-power, and twenty-five mills, if over thirty horse-power, on each dollar of its value as ascertained from the maker's current price list, with specified deductions therefrom according to the age of the motor vehicle and with deduction also of its valuation made for purposes of local taxation, the minimum excise in any event to be not less than two dollars. The sum thus to be paid is termed an excise ‘for the privilege of operating each such motor-vehicles upon the public ways.’ Provision is made in other sections of the proposed statute for the issuance of a permit as prerequisite to the registration of such motor vehicle, for the enforcement of the terms of the statute by local officers of each city and town, and for the disposition of moneys collected under the act. Its provisions need not be further described.

[1] The manifest design to be accomplished by the proposed act is the collection of a tax for the use of the highways by motor vehicles. There is no constitutional mandate which requires the commonwealth or any of its territorial subdivisions to establish and maintain highways for public travel. The whole subject of laying out, constructing and repairing highways is vested in the General Court under the power and authority to enact ‘all manner of wholesome and reasonable orders, laws, statutes, and ordinances' not repugnant to the Constitution ‘as they shall judge to be for’ the common good and general welfare. In the early days of the commonwealth many, if not most, or the highways were built and maintained by private enterprise through turnpike corporations established by law and dependent for their support upon tolls charged to travelers. Bridges were built and maintained in the same way. Ferries were operated either in the same way or by municipalities, which collected tolls for their use. All highways and bridges, so far as we are aware, and some of the ferries, have been acquired by the commonwealth or by counties, cities or towns. They thus have become the property of the commonwealth either directly or through its governmental subdivisions. The free use of all highways has been provided at the expense of the public treasury for many years in this commonwealth. This has not always been the custom. It is comparatively modern.

[2] The power of government to take, acquire or construct instrumentalities for public travel and to charge toll, rental or other recompense therefor is illustrated in several decisions. Commonwealth v. Wilkinson, 16 Pick. 175,26 Am. Dec. 654;George G. Fox Co. v. Boston & Northern Street Railway, 217 Mass. 140, 142, 104 N. E. 356;Boston v. Treasurer and Receiver General, 237 Mass. 403, 414, 130 N. E. 390, and cases there reviewed.

If and so far as such tolls or rentals are based on fair recompense for the public moneys expended for initial construction and for adequate maintenance, they do not involve the power of taxation. They rest on the rights of the commonwealth as proprietor of the instrumentalities used. As a sovereign power the commonwealth may do as it will with its own, provided its action can be said to be in the public interest and not violative of constitutional guarantees. Boston Fish Market Corp. v. Boston, 224 Mass. 31, 112 N. E. 616; Treasurer and Receiver General v. Revere Sugar Refinery, 247 Mass. 483, 142 N. E. 909;Carson v. Sewerage Commissioners of Brockton, 175 Mass. 242, 56 N. E. 1,48 L. R. A. 277. A familiar illustration of the exercise of such rights is the establishment and collection of rates for the use of water furnished by government. Ladd v. Boston, 170 Mass. 332, 49 N. E. 627,40 L. R. A. 171;Souther v. Gloucester, 187 Mass. 552, 73 N. E. 558,69 L. R. A. 309;Shaw Stocking Co. v. Lowell, 199 Mass. 118, 85 N. E. 90,18 L. R. A. (N. S.) 746,15 Ann. Cas. 377;Merrill v. Revere, 211 Mass. 468, 98 N. E. 99;Brand v. Water Commissioners of Billerica, 242 Mass. 223, 136 N. E. 389.

The power proposed to be exercised in the present bill is not of that nature. Avowedly an excise tax is established. The declaration to that effect is explicit. Such statutory statement is to be accepted as true unless incompatible with the meaning and effect of the act as a whole. Lajoie v. Milliken, 242 Mass. 508, 521, 136 N. E. 419. Moreover, the revenue to be obtained is not to be applied to the maintenance and repair of highways but is to be retained by the several cities and towns without restriction. It thus will become applicable to general public uses. That factor is not decisive but is entitled to weight in determining the nature of the exaction.

The words of the Constitution granting the power to levy an excise are these:

‘Full power and authority are hereby given and granted to the said general court * * * 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...