In re Opinion of the Justices

• Decision Date: 18 April 1933
• Citation: 186 N.E. 490,282 Mass. 619
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 619

186 N.E. 490

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

April 18, 1933.

Answers to questions propounded to the Justices of the Supreme Judicial Court by the Senate.

Questions in Opinion of Justices:

Reports of Committees.

By Mr. Stevens, for the committee on Rules, that the Senate Order requesting the opinions of the Justices of the Supreme Judicial Court on certain bills relating to the taxation of personal property, tobacco and beverages,-ought to be adopted in a new draft, as follows, to wit:-

Whereas, There are pending before the General Court three petitions with accompanying bills, printed as Senate document numbered two hundred and twenty and House documents numbered seven hundred and ninety-five and ten hundred and fifty-five, whereof copies are hereto annexed, providing for the taxation of sales of tangible personal property or commodities; and

Whereas, There are also pending before the General Court a bill relating to the sale of tobacco and tobacco products and imposing and levying an excise on dealers therein, and another relating to the sale of certain beverages and levying and imposing an excise on dealers therein, such bills being printed in House document numbered four hundred and ten, whereof copies are hereto annexed; and

Whereas, Doubt exists as to the constitutionality of said bills, if enacted into law; therefore be it.

Ordered, That the opinions of the Honorable the Justices of the Supreme Judicial Court be required by the Senate on the following important questions of law:-

1. Is it constitutionally competent for the General Court under that clause of article IV of section one of chapter one of the Constitution, which empowers it 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 Commonwealth, or under any other provision of the Constitution, to enact a law imposing and levying a duty to excise on sales of tangible personal property?

2. Is it constitutionally competent for the General Court, under said clause or other provision, to enact a law imposing and levying a duty or excise upon produce, goods, wares or merchandise being within the Commonwealth, such duty or excise to be exacted at the time of sale of such produce, goods, wares or merchandise?

3. Is it constitutionally competent for the General Court, under said clause or other provision, to enact a law imposing and levying a duty or excise upon produce, goods, wares or merchandise being within the Commonwealth, such duty or excise to be exacted at the time of consumption or sale for consumption of such produce, goods, wares or merchandise?

4. Is it constitutionally competent for the General Court to enact a law requiring that dealers in tobacco and tobacco products be registered, and imposing and levying a duty or excise upon the privilege of registration:

5. Is it constitutionally competent for the General Court to enact a law requiring that dispensers of or dealers in beverages be registered, and imposing and levying a duty or excise upon the privilege of registration?

Read, and the order considered forthwith under a suspension of the rule, moved by the same Senator, and (as amended by the substitution of the new draft) adopted.

To The Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions set forth in an order adopted on April 5, 1933, and transmitted to them on April 7, 1933, copy whereof is hereto annexed.

The main inquiry raised by the order in its questions numbered one, two and three, as applied to the accompanying bills, is whether it is within the competency of the General Court to levy a duty or excise on sales of produce, goods, wares, and merchandise. Each of these bills, by title or by terms, concerns sales at retail.

The powers of taxation in chapter 1, § 1, art. 4, of part 2 of the Constitution are in these words, ‘full power and authority are hereby given and granted’ to the General Court ‘to impose and levy proportional and reasonable assessments, rates, and taxes, upon all the inhabitants of, and persons resident, and estates lying, within’ the Commonwealth and ‘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’ Commonwealth. The questions relate solely to ‘duties and excises' and therefore only that part of the grant of power to tax need be considered. It is not necessary to examine article 44 of the Amendments to the Constitution, relative to taxation of incomes, because none of the questions touch that subject, although House bill No. 1055 appears to have some connection with it. The grant of ‘full power and authority’ is comprehensive. It does not easily lend itself to implied exceptions, although it must be limited in construction so as to be in harmony with other equally mandatory provisions of the Constitution. The competency of the General Court to exercise taxation is therefore of broad import. It is thus empowered to impose and levy ‘reasonable duties and excises.’ When the word ‘duties' was adopted as a part of the Constitution,Massachusetts was an independent State with only the loose connection with the other original States afforded by the Articles of Confederation, and it remained such independent State until it ratified the Constitution of the United States and that instrument became established, in accordance with its article 7, in 1788. Construed in the light of those facts, ‘duties' included at least the power to collect revenue from goods imported into and exported from Massachusetts, a power surrendered to the United States by article 1, §§ 8 and 10, of the Federal Constitution. It is not necessary to consider whether it may have a wider meaning because we are of opinion that the proposed tax falls within the description of ‘excises.’ The term ‘excise’ was said in President, etc., of Portland Bank v. Apthorp, 12 Mass. 252, 256, to be ‘of very general signification, meaning tribute, custom, tax, tollage, or assessment’; in Oliver v. Washington Mills, 11 Allen, 268, 274, to be ‘a fixed, absolute and direct charge laid on merchandise, products or commodities, without any regard to the amount of property belonging to those on whom it may fall, or to any supposed relation between money expended for a public object and a special benefit occasioned to those by whom the charge is to be paid’; and in Minot v. Winthrop, 162 Mass. 113, 119, 38 N. E. 512, 514,26 L. R. A. 259, it was stated that ‘The excises to which the inhabitants of the province of Massachusetts Bay were accustomed were taxes in the nature of license fees for carrying on certain kinds of business, taxes on the sale of goods, wares, and merchandise, such as intoxicating liquors, tea, coffee, and chocolate, china ware, etc., and stamp taxes on legal papers.’ In Pacific Insurance Co. v. Soule, 7 Wall, 433, at page 445, 19 L. Ed. 95, occurs this language: ‘Excise is defined to be an inland imposition, sometimes upon the consumption of the commodity, and sometimes upon retail sale; sometimes upon the manufacturer, and sometimes upon the vendor. Bateman, Excise Law, 96; 1 Story Const. § 953; 1 Bl. Com. 318; 1 Tuck. Bl. App. 341.’ Patton v. Brady, 184 U. S. 608, 617-618, 22 S. Ct. 493, 46 L. Ed. 713;Opinion of the Justices, 220 Mass. 613, 618, 619. Excises have also been defined as ‘taxes laid upon the manufacture, sale or consumption of commodities within the country, upon licenses to pursue certain occupations, and upon corporate privileges.’ Cooley on Taxation (4th Ed.) § 42. Without atempting to lay down a precise definition of ‘excises,’ it is apparent from what has been said that the proposed tax falls within the kind of exaction of public revenue included within that word in the Constitution.

The words descriptive of the subjects upon which reasonable ‘excises' may be imposed and levied are ‘any produce, goods, wares, merchandise, and commodities, whatsoever, brought into, produced, manufactured, or being within’ the Commonwealth. The word ‘commodities' in this connection may have a broader significance than the other words used in conjunction with it, although in common speech it frequently is used in a sense nearly if not quite identical with them. The interpretation of that word has been discussed several times and has been found to involve difficulties. President, etc., of Portland Bank v. Apthorp, 12 Mass. 252;Gleason v. McKay, 134 Mass. 419, 425;O'Keefe v. Somerville, 190 Mass. 110, 112, 113, 76 N. E. 457,112 Am. St. Rep. 316,5 Ann. Cas. 684;In re Opinion of the Justices, 195 Mass. 607, 614, 84 N. E. 499;Id., 196 Mass. 603, 85 N. E. 545;Id., 247 Mass. 589, 593, 143 N. E. 808;Id., 266 Mass. 590, 165 N. E. 904, 63 A. L. R. 952. The scope of that word need not here be considered. It is manifest from the tenor of the questions in the order, read in the light of the accompanying bills, that the inquiry is limited strictly to sales of tangible personal property, and does not include sales of other property which would fall within the broad definition of ‘commodities.’ It is assumed, also, that sales of gasoline are excluded from the scope of the questions because no reference is made in any of the bills to the provisions of G. L. (Ter. Ed.) c. 64A, levying a tax on sales of that article based on number of gallons sold, although it may be open to doubt whether all the accompanying bills make this omission clear. The words ‘produce, goods, wares, merchandise’ are inclusive enough in their meaning accordingto the approved usage of the language to comprise all articles of tangible personal property usually sold at retail.

The questions and the accompanying bills make clear that the proposed excise is to be levied...