In re Opinion of the Justices

• Citation: 148 N.E. 889,250 Mass. 591
• Parties: Opinion of the JUSTICES.
• Decision Date: 31 January 1925
• Court: United States State Supreme Judicial Court of Massachusetts

250 Mass. 591

148 N.E. 889

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.

The following order was passed by the House of Representatives on May 9, 1924, and was transmitted to the Justices of the Supreme Judicial Court on May 14, 1924.

Whereas, there is pending before the General Court a bill entitled ‘An act to provide an excise on the use of the ways by motor vehicles.’ being House Document No. 1520, a copy of which is herewith submitted; and

Whereas, doubt exists as to the constitutionality of the proposed measure if enacted into law; therefore be it Ordered, that the House of Representatives require the opinions of the honorable the Justices of the Supreme Judicial Court upon the following important questions of law, such opinions to be filed with the clerk of the House of Representatives at the convenience of the honorable Justices:

1. 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?

The proposed legislation, House Document No. 1520, was entitled ‘An act to provide an excise on the use of the public ways by motor vehicles' and contained the following provisions:

Section 1. The General Laws are hereby amended by inserting after chapter fifty-nine, under the title ‘Excise Tax on Motor Vehicles for Use of the Public Ways,’ the following new chapter:

‘Chapter 59A.

‘Excise Tax on Motor Vehicles for Use of the Public Ways.

‘Section 1. Every inhabitant of this commonwealth, including every partnership and every corporation either domestic or foreign, having a usual place of business therein, owning a motor vehicle or motor vehicles, shall, subject to the provisions of section five, pay annually with respect to each calendar year for the privilege of operating each such motor vehicle upon the public ways an excise as follows: A sum equal to such number of mills per dollar of the maker's current list price as of January first of the year of the excise if available or the maker's list price for the year of manufacture, in either case as determined by the commissioner of corporations and taxation, less the deduction therefrom hereinafter provided, as is set forth in the appended rate schedule, provided, nevertheless that a ‘dealer’ as defined in section one of chapter ninety, shall not be required to obtain the permit hereinafter provided for registration of nor pay excise for the privilege of operating such motor vehicles as are owned solely for purposes of demonstration and sale and which constitute stock in trade.

‘Succeeding the year of manufacture there shall be deducted from the list price for the first year twenty-five per cent. thereof, for the second year fifty per cent., for the third year seventy-five per cent., and for the fourth and ensuing years ninety per cent.

‘There shall further be deducted the value as determined by the board of assessors of said motor vehicle as of the first day of April of any year if subject to local taxation in this commonwealth upon such date. The excise under this act, however, shall in no case be less than two dollars for each motor vehicle but a motor vehicle operated and transferred within the year by an inhabitant may be operated for the remainder of the year without the payment of further excise for its use.

‘Rate Schedule.

‘Vehicles of less than thirty horse-power twenty mills per dollar.

‘Vehicles of thirty or more horse-power twenty-five mills per dollar.

‘Horse-power for the purpose of this chapter shall mean horse-power as determined by the registrar of motor vehicles in the department of public works in determining the registration fee provided in chapter ninety. The commissioner shall as soon as may be in each year report his determination under this section to the assessors.

‘Section 2. Subject to the general supervision of the commissioner of corporations and taxation, the board of assessors in each city and town shall determine the excise provided in sections one and five, and shall upon application issue a permit for registration or transfer of such motor vehicle, such application and such permit to be in such form as prescribed by the commissioner of corporations and taxation, and the assessors shall keep an accurate account of all such permits issued by them. The board of assessors may designate some other town officer or person to perform this duty. Permit shall be granted and assessment of the excise shall be made in the city or town in which the inhabitant resides at the time of issue of permit, or in the case of a partnership or corporation in the city or town where the motor vehicle is customarily kept if kept within the commonwealth, otherwise in the city or town where the partnership or corporationhas its principal place of business within the commonwealth. No permit shall issue more than two and one-half months prior to the calendar year for which registration is sought. The provisions of chapters fifty-nine and sixty relative to assessment, commitment, collection, payment, abatement and administration of taxes upon tangible personal property shall so far as pertinent and not inconsistent herewith, be applicable to excise taxes under this chapter.

‘Section 3. No motor vehicle shall be registered by the registrar of motor vehicles nor shall there by transfer of registration unless at the time of application for such registration or transfer the permit provided for in section two shall be presented and filed with said registrar.

‘Section 4. The permits issued in accordance with this chapter for any calendar year shall expire at midnight upon the thirty-first day of December of such calendar year.

‘Section 5. The excise for the privilege of operating a motor vehicle registered during the period beginning with the first day of July and ending with the last day of December in any year shall be two thirds, and for the period beginning the first day of October and ending with the last day of December in any year shall be one third of the sum named in section one, and shall be committed by the board of assessors as soon as may be after the expiration of each of said periods, and shall be due and payable within thirty days of the date of commitment.

‘Section 6. All money collected under the provisions of this chapter shall be retained by the town in which it is collected.

‘Section 7. This chapter shall not be construed to alter or amend the provisions of law with respect to the registration of motor vehicles otherwise than to prohibit the registration of motor vehicles coming within the provisions of this chapter until the permit herein provided for has been obtained.

‘Section 8. Any person willfully making any false statement to a person charged with the duty of issuing permits under this chapter shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding twenty-five dollars.

‘Section 9. The commissioner of corporations and taxation shall make from time to time such reasonable rules and regulations as he may deem necessary for carrying out the provisions of this chapter.’

Section 2. This act shall become effective with respect to the use of motor vehicles during the calendar year of nineteen hundred and twenty-five and thereafter.

On January 12, 1925, the Justices returned the following answer:

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-vehicle 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.

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...