in re Opinion of the Justices
| Decision Date | 01 May 1914 |
| Parties | In re OPINION OF THE JUSTICES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The Commonwealth of Massachusetts.
House of Representatives, April 23, 1914.
Ordered that the opinion of the Justices of the Supreme Judicial Court be required by the General Court upon the following questions of law:
First. Can the General Court exempt from the general property tax the following described property:
(a) Stock of foreign corporations, the property, capital stock of franchises of which are subject to taxation where situated, or where the corporation is organized, or the properties of which are situated within foreign jurisdictions, or the franchises of which are taxed in this state in proportion to the business done here;
(b) Stock of foreign corporations with respect to which a valid excise, duty, or stamp tax has been levied by this commonwealth;
(c) Bonds and notes secured by property which is subject to taxation where situated, or by property which is located within a foreign jurisdiction or the value of which is based upon such property;
(d) Bonds and notes with respect to which a valid excise, duty or stamp tax has been levied by this commonwealth?
Second. Can the General Court impose an excise upon the issue by corporations holding charters from this commonwealth or bonds or notes, or upon the annual or periodic registration by an agent of the commonwealth of such bonds or notes?
Third. Can the General Court grant to the owners or holders (a) of such stock or (b) of such bonds and notes as are referred to in the first question, the privilege of registering them with an agent of the commonwealth, and of establishing the right to and securing an exemption of such stock, bonds, or notes from the general property tax, by filing with such agent satisfactory evidence of the existence or continuance of the conditions referred to in such question, and can it impose an excise upon such privilege either in the form of a single payment or of a periodic charge?
Fourth. Can the General Court impose a duty or an excise on the income derived during any given period from the following classes of property, respectively: (a) All personal property (b) all intangible personal property, (c) bonds, notes and other debts, or (d) stock of corporations?
Fifth. Can the General Court impose a duty or an excise on the use of transferable paper writings as symbols or evidences (a) of ownership of shares of foreign corporations or of associations, or (b) of the indebtedness of corporations, associations, or individuals?
Sixth. Can the General Court impose a stamp duty tax upon transferable paper writings such as stock certificates or bonds or notes, payable at the time of the issue thereof or periodically; and can it deny to the owners of such writings recognition of the nature and effect of such writings as property or as evidences of ownership, or the right to transfer or pledge the same or the property represented thereby unless bearing the required stamp?
And be it further ordered, that the Justices of the Supreme Judicial Court be informed that the foregoing questions are put with a view to legislation upon the subjects therein mentioned, and that for their information a copy of House Document No. 2512, being a message from the Governor of the commonwealth upon the subjects mentioned in the foregoing questions, be transmitted to the Justices.
Sent up for concurrence.
James W. Kimball, Clerk.
Senate, April 23, 1914.
Adopted in concurrence.
Henry D. Coolidge, Clerk. To the Honorable the Senate and the House of Representatives of the Commonwealth of Massachusetts:
We, the Justices of the Supreme Judicial Court, have considered the questions in your joint order of April 23, 1914, sent to us on April 29, 1914, and submit the following reply:
When the questions were received some of us had doubts whether, in view of their nature and the circumstances under which they were presented, we properly could express an opinion. Without pausing to decide that point, we took up the questions with a view to submitting our answers, but the difficulties disclosed in framing answers to comprehend the many possible aspects of the several inquiries and to set forth all the limitations to which they may be subject, so as to be a practical aid in shaping legislation and not to be misleading and embarrassing in the future, have confirmed these doubts and have been so great as to compel an examination of the extent of the duty to give opinions imposed on us by the Constitution. A strong desire to respond to questions of the legislative and executive departments of government for defining their several powers ought not to lead us to be incautious in exceeding the limitations imposed on our own powers.
It is always with a feeling of delicacy that this question is considered, but it is our manifest duty to consider it when the occasion demands it. Numerous instances have arisen where the Justices have not felt justified in giving opinions because beyond the power conferred by the Constitution. As was said in an Opinion of the Justices, 150 Mass. 598, at page 601, 24 N.E. 1086, at page 1087:
'It is not the less our duty, in view of the careful separation of the executive, legislative, and judicial departments of the government, to abstain from doing so in any case which does not fall within the constitutional clause relating thereto.'
The same thought was expressed in Opinion of the Justices, 214 Mass. 602, 603, 102 N.E. 644, 645, where it was said...
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