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to find in the statute the far-reaching power which the respondent assumes to exercise. If the language of the statute does not reach the case, the court has no jurisdiction to enlarge its scope beyond what the Legislature has permitted. The rule of equity and fairness to all entitled to the benefits of the rating organization is found in the statute. It may not be made more irksome than the Legislature has made it, even though all are treated alike.

have included in its grant of power to regu-, the authority granted. By this test, we fail late rates the further power as a condition of service to regulate agents' and brokers' commissions, the next logical step would be to include, limit, and regulate as factors in rate making all.expenses of the insurance companies, such as salaries and office expenses. The question would then arise whether such a delegation of legislative power was for the benefit and protection of the public (German Alliance Ins. Co. v. Lewis, 233 U. S. 389, 34 S. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915C, 1189), or whether it interfered with the right of fire insurance companies to regulate their own business in regard to agents' and brokers' commissions, and the number of agencies they should establish, and other matters of internal management-a question which we need not consider at this time. Northwestern Nat. Ins. Co. v. Fishback (Wash.) 228 P. 516.

The rules of the rating organization must be lawful, proper, and within the scope of

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

HISCOCK, C. J., and CARDOZO, CRANE,
and ANDREWS, JJ., concur.
LEHMAN, J., not sitting.
MCLAUGHLIN, J., absent.

Order reversed, etc.

(146 N.E.)

Opinion of the JUSTICES. (Supreme Judicial Court of Massachusetts. January, 1925.)

1. Highways 99- 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 -Power to take instrumentalities for public travel and charge toll does not involve power of taxation.

Power of government to take, acquire, 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 5 (2)-Common knowledge that number of motor vehicles exceeds all others and different highway construction is required

for their convenience.

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

6. Licenses 7(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 7(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, § 2, Const. pt. 2. c. 1, § 1, art. 4, does not prevent levy of excise concerning use by motor vehicles of highways.

8. Licenses 3-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.

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11. Licenses 7(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 7(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.

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

tion 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

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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.

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.

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 pubiic uses. That factor is not decisive but is entitled to weight in determining the nature of the exaction.

[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 The power proposed to be exercised in the repairing highways is vested in the General present bill is not of that nature. Avowedly Court under the power and authority to en- an excise tax is established. The declaraact "all manner of wholesome and reasonable tion to that effect is explicit. Such statuorders, laws, statutes, and ordinances" not tory statement is to be accepted as true unrepugnant to the Constitution "as they shall less incompatible with the meaning and efjudge to be for" the common good and gener- fect of the act as a whole. Lajoie v. Millial welfare. In the early days of the common-ken, 242 Mass. 508, 521, 136 N. E. 419. Morewealth many, if not most, of the highways over, the revenue to be obtained is not to be 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 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 same." Chapter 1, § 1, art. 4.

The nature of an excise on "commodities" in this connection has been discussed in several decisions. In Portland Bank v. Apthorp, 12 Mass. 252, 256, it was said:

"The term excise is of very general signification, meaning tribute, custom, tax, tollage, or assessment."

Toll-at that time a word in common use in connection with turnpikes and bridgesthus was mentioned more than one hundred years ago in the first decision requiring a critical consideration of the meaning of the word "commodities" in the Constitution as an illustration of an excise. That definition of excise was quoted in an important connection in Minot v. Winthrop, 162 Mass. 113,

It

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(146 N.E.)

modity "will perhaps embrace everything | cago, 235 Ill. 58, 85 N. E. 245, 14 Ann. Cas. which may be a subject of taxation. * 536; Ogilvie v. Hailey, 141 Tenn. 392, 210 signifies convenience, privilege. S. W. 645; State v. Lawrence, 108 Miss. 291, All public ways are acquired and 66 So. 745, Ann. Cas. 1917E, 322; Ex parte maintained for the use of the public. We Schuler, 167 Cal. 282, 139 P. 685, Ann. Cas. are not here concerned with attempts by 1915C, 706; Terre Haute v. Kersey, 159 Ind. eities or towns to charge a toll for the use of 300, 64 N. E. 469, 95 Am. St. Rep. 298; Jackhighways, but with the commonwealth itself son v. Neff, 64 Fla. 326, 60 So. 350; Park v. acting in its sovereign capacity with refer- Duluth, 134 Minn. 296, 159 N. W. 627; Lilence to a strictly public matter. See Bolster lard v. Melton, 103 S. C. 10, 87 S. E. 421; v. Lawrence, 225 Mass. 387, 389, 114 N. E. State v. Becker, 288 Mo. 607, 233 S. W. 54; 722, L. R. A. 1917B, 1285. The power of the State v. Ingalls, 18 N. M. 211, 135 P. 1177. General Court to enact general and equal See Opinion of the Justices, 123 Me. 573, 121 laws on such a subject is very broad. "Toll" A. 902. As matter of abstract principle we is the apt word to describe the collection of are of opinion that it is within the constitumoney for the use of a highway or bridge. tional power of the General Court to levy an excise as a toll for the use of public ways by motor vehicles.

The method of collection and distribution of the excise proposed in the bill is not open to sound objections on constitutional grounds. Duffy v. Treasurer and Receiver General, 234 Mass. 42, 125 N. E. 135; Knights v. Treasurer and Receiver General, 237 Mass. 493, 130 N. E. 60.

The proposed bill plainly is a revenue measure. It is not enacted in the exercise of the police power. Cases involving consideration of that power, like Commonwealth v. Slocum, 230 Mass. 180, 119 N. E. 687; Burgess v. Mayor and Aldermen of Brockton, 235 Mass. 95, 126 N. E. 456, and Pawloski v. Hess, 250 Mass. -,

[3, 4] There are appearances of inequality about a toll upon the use of highways by motor vehicles. The fact that no toll is charged for the use of highways by other kinds of vehicles bears a superficial likeness to discrimination against motor vehicles. It is matter of common knowledge that the number of motor vehicles vastly exceeds all others and that a different highway construction as to durability and smoothness is required for their convenience. It is understood generally that the use of motor vehicles is highly destructive of highways and requires large expenditures for original construction or reconstruction and annual maintenance. The use of highways by other vehicles may be found by the General Court to be so small in quantity and so little destructive in quality, compared with that by motor vehicles, as to be negligible. There is no general provision in the proposed bill for charging toll for motor vehicles owned by non-residents when used upon the highways of the commonwealth. That, too, may be found to be small in comparison with domestic use. The expense of collection and difficulty of enforcement of the law concerning foreign owned motor vehicles may be found to be prohibitive. In any event these apparent inequalities cannot be said to be so great, as matter of law, as to invali-erty utilized in the exercise of the privilege date the classification established by the proposed bill.

[5] A modern instance of the collection of toll by way of excise tax is found in G. L. c. 63, §§ 62-66, for the operation of street railways in public ways. Collector of Taxes v. Bay State Street Railway, 234 Mass. 336, 125 N. E. 614. The collection of a tax by way of tollage or license for the use of public ways by motor vehicles has been upheld in other jurisdictions. Kane v. State, 81 N. J. Law, 594, 80 A. 453, L. R. A. 1917B, 553, Ann. Cas. 1912D, 237; Kane v. New Jersey, 242 U. S. 160, 37 S. Ct. 30, 61 L. Ed. 222; Pierce Oil Corp. v. Hopkins, 264 U. S. 137, 44 S. Ct. 251, 68 L. Ed. 593; Hendrick v. Maryland, 235 U. S. 610, 35 S. Ct. 140, 59 L. Ed. 385; Opinion of the Justices, 81 N. H. 120 A. 629; Standard Oil Co. v. Brodie, 153 Ark. 114, 239 S. W. 753; Harder's Storage Co. v. Chi

144 N. E. 760, have no

relevancy to the present question.

[6] The proposed bill imposes an excise tax based in part upon value of the motor vehicle using the highway. We assume that the "maker's current price list," which by section 1 of the proposed bill is made the basis of the excise, is equivalent to the cost price and that it affords a standard substantially the same in respect to real value with reference to all makes of motor vehicles. If that assumption should turn out to be incorrect difficulties might arise. Excises founded in part upon the value of the prop

thereby taxed are common. They involve no infraction of constitutional guarantees provided in other respects they are genuine excise taxes. Farr Alpaca Co. v. Commonwealth, 212 Mass. 156, 98 N. E. 1078, and cases there reviewed. Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47, 53, 136 N. E. 375, 27 A. L. R. 1131; Alpha Portland Cement Co. v. Commonwealth, 244 Mass. 530, 546, 139 N. E. 158.

The deduction of assessed valuation from the list price provided in section 1 of the proposed act, in principle stands on the same footing as the deduction of tangible property taxed locally under the corporation tax law of St. 1909, c. 490, part 3, § 41, Third, the constitutionality of which was settled by numerous decisions. Commonwealth v. Hamilton Manuf. Co., 12 Allen, 298; Commonwealth v. Cary Improvement Co., 98 Mass.

19, 22, 23; Tremont & Suffolk Mills v. Low-istration, and to afford them means of redress ell, 178 Mass. 469, 59 N. E. 1007; United in case of injury by enabling them readily States Trust Co. v. Commonwealth, 245 Mass. 75, 139 N. E. 794. An examination of the proposed bill plainly shows that it provides for an excise for the use of highways and not a property tax. So far as value is an element in the ascertainment of the excise, it may perhaps rest upon the inference that, the greater the value of a motor vehicle, the greater may be its weight and the more severe the wear caused to the highways by its use thereon.

[7] A troublesome feature of the question and of the proposed bill arises from other statutes whereby taxes in various forms are levied in respect to ownership of motor vehicles. Motor vehicles are personal property. A property tax therefore is levied on them proportionally and reasonably in common with all other personal property in the commonwealth. Const. Mass. pt. 2, c. 1, § 1, art. 4; G. L. c. 59, § 2. That circumstance does not prevent the levy of a lawful excise concerning the use by motor vehicles of high

ways.

Motor vehicles also must be registered in accordance with G. L. c. 90, before they can be operated on ways. Sections 2, 3, 4, 5, 6, 9. There is ground for a contention that no statute requires the registration of a motor vehicle operated exclusively on private property and not on ways as defined in G. L. c. 90, § 1, last paragraph. Compare St. 1909, c. 534, § 9, St. 1919, c. 88, and c. 294, § 3, and G. L. c. 90, § 9. The imperative mandate requiring registration of all motor vehicles found in explicit words in the earlier statutes, St. 1903, c. 473, § 1, St. 1905, c. 311, § 2, St. 1906, c. 412, § 8, St. 1907, c. 580, § 1, and St. 1908, c. 648, § 3, was altered in phrase by St. 1909, c. 534, §§ 2, 31, to the form found in the present provisions of G. L. c. 90, §§ 2, 9. Attention is called to this in passing without undertaking to determine whether it was anything more than a verbal modification not altering the real meaning of the statute. See Main v. County of Plymouth, 223 Mass. 66, 69, 111 N. E. 694. The true interpretation of the statute in that particular, whatever it may be, has no decisive bearing on the present question.

to ascertain the name and address of the owner of an automopile from which they might suffer injury." Holden v. McGillicuddy, 215 Mass. 563, 565, 566, 102 N. E. 923, 924; Shufelt v. McCartin, 235 Mass. 122, 125, 126 N. E. 362; Fairbanks v. Kemp, 226 Mass. 75, 78, 115 N. E. 240; Rolli v. Converse, 227 Mass. 162, 164, 116 N. E. 507. The dominant aim of the statute is to regulate the use of motor vehicles upon highways. That is a proper field for the exercise of the police power. The enactment of G. L. c.` 90, in its main features is an exercise of the police power.

[8, 9] It was decided when the fee for registration of any motor vehicle was only $2, St. 1903, c. 473, § 1, that such fee was a license and not a tax, Commonwealth v. Boyd, 188 Mass. 79, 74 N. E. 255, 108 Am. St. Rep. 464. That registration fee was increased by St. 1907, c. 580, § 1, to $5. Substantially the present schedule of very much larger fees, graduated according to horsepower, contained in G. L. c. 90, § 33, was first established by St. 1909, c. 534, § 29, and has been in force since that statute was enacted. The size of these fees compels the conviction that they are intended chiefly for the production of revenue. That inference is confirmed by the provisions of G. L. c. 90, § 34, as to the distribution and application of such fees. The public records show that a revenue, amounting to several million dollars annually in excess of the cost of administering the motor vehicle law, is now derived from that source. A license fee may be exacted as a part of or incidental to regulations established in the exercise of the police power. Such a fee commonly is commensurate with the reasonable expenses incident to the licensing and all that can rationally be thought to be connected therewith. The amount of the fees in such connection doubtless would not be scrutinized too curiously even if some incidental revenue were obtained. Hendrick v. Maryland, 235 U. S. 610, 622, 35 S. Ct. 140, 59 L. Ed. 385. There is however a clear distinction between a fee which lawfully may be required in the exercise of the police power and a tax which It is manifest from the history and the depends for its validity on the constitutional present provisions of G. L. c. 90, that its limitations governing taxation. Whatever main purpose was to govern the operation of may be the definition of the police power, it motor vehicles upon ways. Most of its pro- cannot be distended so as to include or be visions are specifically to that point. The a substitute for taxation. The bounds of trend of our decisions hitherto has been di- legislative power as to taxation are marked rected to those aspects of the statute. It by distinct and unmistakable words in the has been said that the registration statute | Constitution of this commonwealth. The "was enacted, not only as a police regulation history of constitutional government shows to govern the conduct of all persons in the that clear definition and explicit restriction state, but for the particular protection of of the power of taxation was one purpose if travellers upon the highways, to guard them not a chief motive in adopting written conagainst the dangers that might arise from stitutions. the operation of improper machines to which The great increase of the fees charged for the state would not grant the privilege of reg-registration of automobiles as compared with

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