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. to ascertain the name and address of the 75, 139 N. E. 794. An examination of the owner of an automobile from which they proposed bill plainly shows that it provides might suffer injury." Holden v. McGillicudfor an excise for the use of highways and dy, 215 Mass. 563, 565, 566, 102 N. E, 923, not a property tax. So far as value is an 924; Shufelt v. McCartin, 235 Mass. 122, element in the ascertainment of the excise, 125, 126 N. E. 362; Fairbanks v. Kemp, 226 it may perhaps rest upon the inference that, Mass. 75, 78, 115 N. E. 240; Rolli v. Conthe greater the value of a motor vehicle, the verse, 227 Mass. 162, 164, 116 N. E. 507. The greater may be its weight and the more dominant aim of the statute is to regulate severe the wear caused to the highways by the use of motor vehicles upon highways. its use thereon.

That is a proper field for the exercise of the [7] A troublesome feature of the question police power. The enactment of G. L. c. and of the proposed bill arises from other 90, in its main features is an exercise of the statutes whereby taxes in various forms police power. are levied in respect to ownership of motor [8, 9] It was decided when the fee for vehicles. Motor vehicles are personal prop- registration of any motor vehicle was only erty. A property tax therefore is levied on $2, St. 1903, c. 473, § 1, that such fee was a them proportionally and reasonably in com- license and not a tax, Commonwealth v. mon with all other personal property in the Boyd, 188 Mass. 79, 74 N. E. 255, 108 Am. commonwealth. Const. Mass. pt. 2, c. 1, § 1, St. Rep. 464. That registration fee was inart. 4; G. L. c. 59, 8 2. That circumstance creased by St. 1907, c. 580, § 1, to $5. Subdoes not prevent the levy of a lawful excişe stantially the present schedule of very much concerning the use by motor vehicles of high- larger fees, graduated according to horseways.

power, contained in G. L. C. 90, § 33, was Motor vehicles also must be registered in first established by St. 1909, c. 534, § 29, accordance with G. L. c. 90, before they can and has been in force since that statute was be operated on ways. Sections 2, 3, 4, 5, 6, enacted. The size of these fees compels the 9. There is ground for a contention that no conviction that they are intended chiefly for statute requires the registration of a motor the production of revenue. That inference vehicle operated exclusively on private propis confirmed by the provisions of G. L. c. 90, 9 erty and not on ways as defined in G. L. c. 34, as to the distribution and application of 90, § 1, last paragraph. Compare St. 1909, c. such fees. The public records show that a 534, § 9, St. 1919, c. 88, and c. 294, § 3, and revenue, amounting to several million dollars G. L. c. 90, $ 9. The imperative mandate re- annually in excess of the cost of administerquiring registration of all motor vehicles ing the motor vehicle law, is now derived found in explicit words in the earlier stat- from that source. A license fee may be er. utes, St. 1903, c. 473, § 1, St. 1905, c. 311, acted as a part of or incidental to regula2, St. 1906, c. 412, § 8, St. 1907, c. 580, § 1, tions established in the exercise of the poand St. 1908, c. 648, § 3, was altered in lice power. Such a fee commonly is comphrase by St. 1909, c. 534, 88_2, 31, to the mensurate with the reasonable expenses inform found in the present provisions of G. cident to the licensing and all that can raL. c. 90, $$ 2, 9. Attention is called to this tionally be thought to be connected therein passing without undertaking to determine with. The amount of the fees in such conwhether it was anything more than a verbal nection doubtless would not be scrutinized modification not altering the real meaning too curiously even if some incidental revenue of the statute. See Main v. County of Ply- were obtained. Hendrick v. Maryland, 235 mouth, 223 Mass. 66, 69, 111 N. E. 694. The U. S. 610, 622, 35 S. Ct. 140, 59 L. Ed. 385. true interpretation of the statute in that There is however a clear distinction between particular, whatever it may be, has no de- a fee which lawfully may be required in the cisive bearing on the present question, 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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(146 N.E.) those in force when Commonwealth v. Boyd, Kane v. New Jersey, 242 U. S. 160, 37 S. Ct. 188 Mass. 79, 74 N. E. 255, 108 Am. St. Rep. 30, 61 L. Ed. 222, and Pierce Oil Corp. v. 464, was decided, and the extensive revenue Hopkins, 264 U. S. 137, 44 S. Ct. 251, 68 L. now received from that source have wrought Ed. 593, that the enactment of a statute such a change in the nature of that exaction from as is outlined in the present question would a mere fee to a tax. While the exaction may violate no provision of the Constitution of still parta! of som of the characteristics the United States. of a license fee, it is in essence à kind of tax- No opinion is expressed upon the validity ation. It rests for its validity upon the of the proposed bill in all its details. Opinpower of taxation to be found in the Consti- ion of the Justices, 239 Mass. 606, 612, 133 tution. The schedule of fees established by N. E. 453. It has been examined and refG. L. C. 90, $ 33, is not a property tax. It erences have been made to it for making is not based on value but on horse-power of plain the scope and point of the question. the motor vehicles. It is not proportioned Therefore we answer the question in the to the tax on other property. It is an excise affirmative. tax. It is an excise tax on the privilege of The order requesting this opinion was reregistering for operation upon highways a ceived too late for answer before the admotor vehicle as to construction, size, horse- journment of the honorable House of Reppower, lights, safety equipment, and other- resentatives. This opinion has been prewise, proper to be used in conformity to pared and is transmitted before the assemstanding laws, all as approved by public of- bling of the new House of Representatives fices. That is a commodity upon which an whose members were elected at the Novemexcise tax may be levied. It falls within ber election of 1924. The question whether the scope of decisions already cited and quot- an opinion can be required by one branch of ed in part. It belongs to the kind of excises the General Court for the use of its successor illustrated by Commonwealth v. Stodder, 2 has not been considered. That question Cush. 562, 573, 48 Am. Dec. 679, and Boston left open and the answer now made is not V. Schaffer, 9 Pick. 415.

to be taken as an expression of opinion on it. That excise tax as to its subject is differ

ent from the excise outlined in the present

question and proposed in the accompanying
bill, which is an excise on the use of the


EDWARD P. PIERCE. highway by automobiles.

JAMES B. CARROLL, [10, 11] We assume that the assessment of

WILLIAM C. WAIT. two excise taxes, even though each be upon

GEORGE A. SANDERSON. a separate basis and collected by different officers, for the enjoyment or use of one commodity by a single person for the same period of time would be unreasonable. Connecticut Insurance Co. v. Commonwealth, 133 C. B. ENSIGN & CO. v. FORREST. Mass. 161, 163. The principle against double taxation stated in Otis v. Boston, 12. Cush.

(Supreme Judicial Court of Massachusetts.

Essex. Feb. 25, 1925.) 44, 48, is assumed to be as applicable to excise as to property taxation. See Common-1. Bills and notes 368, 382—Want of deliv. wealth v. People's Five Cents Savings Bank, ery is no defense against holder in due course; 5 Allen, 428, 436. Accepting that principle that note was stolen not defense against innofully, we are of opinion that while the pro- cent holder. posed excise is closely akin to the excise up- Under G. L. c. 107, $ 38, want of delivery is on the registration of motor vehicles, it not defense against bolder in due course, even nevertheless is sufficiently different as to the if instrument is stolen from owner. commodity upon which it is levied to avoid 2. Bills and notes Cu382_Instruction that even any constitutional inhibition. It is not ob

holder in due eourse could not recover, if noxious to the principle against double tax- notes were stolen from maker, held error. ation.

In action by indorsee in due course against Our conclusion is that the "commodity" of maker of notes, instruction that, if jury was satregistering a motor vehicle as fit for use up-isfied that notes were taken by somebody who on highways because conforming to all stat. came and took them away, if notes were stolen, utory requirements for the public safety is even holder in due course could not recover, was different from the commodity of actually using the highways of the commonwealth by the driving upon them of a motor vehicle.

Exceptions from Superior Court,' Essex Each of these commodities may be subjected County; H. A. Dubuque, Judge. to an excise, provided the General Court in Action of contract by C. B. Ensign & Co. its wisdom determines that course to be wise. against John J. Forrest. Judgment for de

[12] It is settled by Hendrick v. Maryland, fendant, and plaintiff excepts. Exceptions 235 U. S. 610, 35 S. Ct. 140, 59 L. Ed. 385; I sustained.

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

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Cregg & Cregg, of Lawrence, for plaintifr., due course, even if the instrument is stolen J. J. Sullivan, for defendant.

from the maker. In Buzzell v. Tobin, 201

Mass. 1, 2, 86 N. E. 923, it was said: * CARROLL, J. This is an action by the

"But the check was in the hands of the plainindorsee against the maker of two promisso- tiff as a holder in due course, and as to him a ry notes payable to the order of Partin Man- valid delivery by the defendant was conclusiveufacturing Company, Incorporated. There ly presumed, even if this defense would have was evidence that the plaintiff received the been open as between the original parties." notes before their maturity without notice of

See Massachusetts National Bank v. Snow, any infirmity, paid value for them, and was

supra; Town of Newbern v. National Bank, a holder in due course. The defendant tes- 234 F. 209, 148 C. C. A. 111, L. R. A. 1917B, tified that the notes were in his possession 1019; Angus v. Downs, 85 Wash. 75, 147 P. when an agent of the Partin Manufacturing 630, L. R. A. 1915E, 351; Montvale v. PeoCompany called on him and asked to see ple's Bank, 74 N. J. Law, 464, 67 A. 67; Linthem; that the notes were signed by the de- barger v. Board of Education, 83 N. J. Law, fendant; that during his absence the agent 446, 85 A. 235. took the notes; that after the agent had de

The recent case of Manker V. American parted the defendant discovered the notes Savings Bank & Trust Co. (Wash.) 230 P. were gone; that he did not intend to deliver 406, is not in conflict. In that case the stolthem, and they were not delivered. The

en municipal bonds were payable only from trial judge instructed the jury, in substance, a particular fund therein designated. that the plaintiff could recoyer if he was a

[2] Even if the notes were stolen from the holder in due course, even if the defendant defendant, if the plaintiff was a holder in never delivered the notes; and that the due course he could recover; and although question of delivery was not important if the the instructions to the jury were adequate plaintiff was a holder in due course. But in

and accurate in all other respects, we think the course of his instructions he said:

that the plaintiff may have been prejudiced "If, on the other hand, you are satisfied that by this particular instruction. The jury what Mr. Forrest tells you is true, and that the may have found that the notes were stolen notes were taken by somebody, by a woman who from the defendant, and they may have came there and took them away-of course, if found in favor of the defendant for this reathe notes were stolen, even a holder in due

Because of this error in the instruc course cannot recover."

tions, the plaintiff's exceptions are sustained. This instruction was excepted to by the So ordered. plaintiff.

Before the enactment of the Negotiable Instrument Act (G. L. c. 107), it was decided OLSEN V. NEW ENGLAND FUEL & TRANS. in some jurisdictions that a bona fide holder

PORTATION CO. could recover against the maker, although the instrument had never been delivered by

(Supreme Judicial Court of Massachusetts.

Suffolk. Feb. 26, 1925.) the maker, and it had been stolen from him. Massachusetts National Bank v. Snow, 1871. Evidence om 544Witness held qualified to Mass. 159, 72 N. E. 959; Worcester County testify as to cause for breaking out of piece Bank v. Dorchester & Milton Bank, 10 Cush. missing from stop valve. 488, 57 Am. Dec. 120; Kinyon v. Wohlford, In action for personal injuries through ex. 17 Minn. 239 (Gil. 215), 10 Am. Rep. 165; plosion of auxiliary stop valve of steamship Clarke v. Johnson, 54 Ill. 296; Shipley v. boiler, machinist and steam engineer of 18 years' Carroll, 45 Ill. 285,

experience in repairing marine engines and boilIn other jurisdictions it has been held that ers and building boilers, and with 9 years' exlack of delivery by the maker is a good de- perience at sea as engineer, was qualified from

inspection of valve to state what would have fense against a bona fide holder for value. been adequate cause for breaking out of piece Sheffer v. Fleischer, 158 Mich. 270, 122 N. then missing. W. 543; Salley v. Terrill, 95 Me. 553, 50 A. 896, 55 L. R. A. 730, 85 Am. St. Rep. 433; 2. Appeal and error em 203(3)-Party dissatis

fied with qualifications of expert witness Dodd v. Dunne, 71 Wis. 578, 37 N. W. 430.

should object, and obtain rulings on sufficiency [1] General Laws, c. 107, $ 38, provides:

of his knowledge. “Where the instrument is in the hands of

If defendant was dissatisfied with qualifholder in due course a valid delivery thereof by cation of expert witness, it should have objected all parties prior to him so as to make them lia- and obtained rulings on sufficiency of his knowlble to him is conclusively presumed.”

edge as to matters then inquired about. So far as we have been able to find, the 3. Shipping C86(3)-Evidence as to explosion decisions of the courts on this section of the of stop valve held to leave question of neglistatute are in accord, in favor of the inno gence to speculation. cent purchaser, and hold that want of deliv. In action for personal injury to third per. ery is not a defense against the holder in son's employé, working on a steamship, through

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

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(146 S.E.) explosion of auxiliary stop valve of boiler, evi- , be certain just what caused the break. The dence held to leave question of defendant's neg. | valve was of standard make, and had been ligence wholly to speculation or conjecture, in use since 1908, under a usual pressure making it court's duty to direct for defepdant.

while the vessel was at sea of 180 pounds Exceptions from Superior Court, Suffolk per square inch. It had been closed for the

two days before the accident and was under County; Louis S. Cox, Judge.

a pressure of about 120 pounds, which was Action of tort by Thomas M. Olsen against the pressure at the time it gave way. There the New England Fuel & Transportation was no evidence of the lifetime of such a Company, to recover for injuries received valve. It had been inspected yearly, the last through explosion of auxiliary Stop valve inspection in the July preceding the Decemof boiler, while working on defendant's ber of the accident, and when inspected had steamship as employé of third person. Ver- been found in good condition. There was no dict for plaintiff, and defendant excepts. evidence of any old crack. It was necessary Exceptions sustained.

to take the valve apart in order to inspect W, R. Bigelow, of Boston, for plaintiff.

the region of the break. There was no eviG. P. Wardner, of Boston, for defendant.

dence to show that it was usual to take such

valves down oftener than once a year. There WAIT, J. The bill of exceptions presents

was no evidence that it had leaked or shown two questions: Was the testimony of any defect in service. The opinion of StromStromberg properly admitted? Was there ev- berg was the only testimony that the break idence of negligence sufficient to entitle the might have resulted from a hammering caused plaintiff to go to the jury?

by condensation in the steam pipe which [1, 2] The exception to the admission of brought a sudden and unusual strain upon the evidence must be overruled. Stromberg the casting at a time when it was under an was asked whether, from an inspection of undue strain due to being screwed down the valve whose breaking causing the in- improperly in closing it. Equally probable jury, he was able to state what would have explanations were shown. There was no evbeen an adequate cause for breaking out idence that, in fact, the valve had been the piece then missing This was a proper screwed down too tightly. We disregard the subject for expert testimony. The witness evidence that the spindle would have broken was a machinist and steam engineer who, for or stripped or the disk would have given the 18 years preceding, had worked repair-way before the casting would yield had too ing marine engines and boilers and building great pressure been used in screwing down boilers and who for 9 years before that had the valve; because, theoretically, the jury been at sea as an engineer. He had never might have disbelieved it. known a valve exactly like the one before We think the evidence leaves wholly to him to break, but had known of the breaking speculation or conjecture whether the defendof a similar valve. He knew something of ant was negligent. It does not present facts castings and of cast iron, but never had which show negligence. It is fully as conmade a study of them and did not know sistent with the absence as with the presall about what defects came in castingsence of carelessness. In such a case it is the and why. Obviously he was qualified to court's duty to direct a verdict for the deanswer the question put to him.

His ex

fendant. Doyle v. Boston & Albany Railperience enabled him to give evidence of value; even if it was not so universal- road, 145 Mass. 386, 14 N. E. 461. În Grifly comprehensive that it covered all pos

fin v. Boston & Albany Railroad, 148 Mass. sible matters involved in the breaking of 143, 19 N. E. 166, 1 L. R. A. 698, 12 Am. St. a valve.

No objection was made tofur- Rep. 526, Mooney v. Connecticut River Lumther questions.

ber Co., 154 Mass. 407, 28 N. E. 352, Lowner If the defendant was dis

V. New York, New Haven & Hartford Railsatisfied with his qualification to answer them, it should have objected and obtained road, 175 Mass. 166, 55 N. E. 805, Melvin v. rulings on the sufficiency of his expert knowl- Pennsylvania Steel Co., 180 Mass. 196, 62 N. edge in regard to the matters then inquired worth 'Co., 230 Mass. 299, 119 N. E. 683, there

E. 379, and Heuser v. Tileston & Hollingsabout. As was said, with abundant citation

were facts furnishing far more basis for of authority, in Johnson v. Lowell, 240 Mass. 546, 549, 134 N. E, 627, 629:

trustworthy inference than are presented

here. Beattie v. Boston Elevated Railway, "It is settled that whether a witness offered 201 Mass. 3, 86 N. E, 920, perhaps comes as as an expert is qualified to give an opinion, rests near this case on its facts as any other, but very largely in the discretion of the presiding in that case there was testimony that only judge whose decision will not be reversed un

through defects in the condition of the elecless clearly erroneous as matter of law.”

tric mechanism and equipment of the car No clear error of law appears.

(matters which could have been observed [3] The evidence, taken most strongly for readily on inspection) could the explosion the plaintiť, shows that the valve broke in have occurred. the cast-iron casting, and that no one could The case falls within the line of decision

146 N.E.-42

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illustrated by Clare v. New York & New | 6. Infants en 47-Minor's contracts of surety, England Railroad, 167 Mass. 39, 44 N. E. ship are voidable, 1054, Wadsworth v. Boston Elevated Rail As contract of minor as surety on poor way, 182 Mass. 572, 66 N. E. 421, Sheehan debtor's recognizance is without direct bene. v. Goodrich, 207 Mass. 99, 92 N. E. 1005, fit to him, he is at liberty to avoid it, unless aftRidge v. Boston Elevated Railway, 213 Mass.

er coming of age he has confirmed it, 460, 100 N. E. 667, Kusick v. Thorndike & 7. Infants 56 Misrepresentation of age Hix, Inc., 224 Mass. 413, 112 N. E. 1025, and does not preclude plea of minority. Hanna v. Shaw, 244 Mass. 57, 138 N. E. 247, Misrepresentation of age by minor does not and within the principle stated by Sheldon, preclude plea of minority. J., in Carney y. Boston Elevated Railway, 212 Mass. 179, 180, 98 N. E. 605 (Ann. Cas.

Appeal from Appellate Division of Dis. 1913C, 302, 42 L. R. A. [N. S.) 90):

trict Court's Northern District, Middlesex

County. "Where as here the cause of the accident has come from the lawful operation by lawful means Action of contract by the J. G. Pierce Comof an authorized instrumentality, and where any pany against J. Roger Wallace to recover on damage or injury that has resulted may have recognizance taken in poor debtor proceedcome without any negligence of the defendant, ing. The appellate division of district courts but may have arisen merely as an unavoidable dismissed report from Third district court, accident from the careful and skillful exercise of and affirmed judgment for defendant, and its lawful rights in spite of the observance of all proper precautions, there no liability can

plaintiff appeals. Affirmed. arise without some affirmative evidence of neg

J. E. Reagan, of Boston, for appellant. ligence.”

K. G. Baker, of Boston, for appellee. The defendant's motion for a directed verdict should have been allowed. We need WAIT, J. This case is before us upon apnot consider the exceptions to the refusal peal from an order of the appellate divi. of its requests for rulings.

sion of district courts (Northern district) dis. The exception to the admission of evi- missing a report from the Third district dence is overruled. The exception to the re- court of Eastern Middlesex and affirming a fusal to direct a verdict for the defendant judgment for the defendant. is sustained.

The report presented for determination the So ordered.

question whether a surety upon a recognizance taken in a poor debtor proceeding could set up his minority as a defence, and thereby

defeat recovery, after a breach of the recog. J. G. PIERCE CO. v. WALLACE.

nizance. (Supreme Judicial Court of Massachusetts.

[1] The plaintiff contends that there was Middlesex. Feb. 26, 1925.)

error in the refusal of the trial judge to give

certain requests of the plaintiff and in the 1. Appeal and error Ew987(2)-Finding of fact giving of others presented by the defendant. by trial judge cannot be reviewed.

The judge found as a fact that the defendSo far as findings of trial judge that minor ant was a minor when he became surety on had done nothing to preclude denial of liability, and had not ratified act, were matters of fact, July 21, 1923, and that he did nothing therethe Supreme Judicial Court cannot, in view of after and before suit which precluded him G. L. c. 231, § 110b, added by St. 1922, c. 532, from denying liability, and nothing which $ 8, review them.

amounted to a ratification of his act in en2. Trial 386(3)-Refusal of request, ren

tering into the recognizance.

So far as this was matter of fact we candered immaterial by finding, held without er.

not review the finding. St. 1922, c. 532, § ror.

There was no error in refusal of requests, 8 (G. L. C. 231, $ 110b). which were rendered immaterial by findings of

[2] Several of the requests were refused defendant's minority and lack of ratification. because they were rendered immaterial by 3. Infants Em58 (1) Certain contracts of

the findings of minority and lack of ratifica

tion. minors are voidable,

There was no error in such refusal With certain exceptions, contracts of mi- All the requests were dealt with properly, nors are voidable.

if the minority constituted a defence.

[3-5] The law of Massachusetts is well set4. Infants C50-Contracts for necessities tied that, with certain exceptions, the conare binding on minor.

tracts of a minor are voidable. Carpenter Contracts for necessities are binding on v. Grow, 247 Mass. 133, 141 N. E. 859; Knudminor.

son v. General Motorcycle Sales Co., Inc., 230 5. Infants 46–Minor is liable on contracts Mass. 54, 119 N. E. 359; Benson v. Tucker, law requires him to make.

212 Mass. 60, 98 N. E. 589, 41 L. R. A. (N. S.) Minor is liable on contracts which the law | 1219; McDonald v. Sargent, 171 Mass. 492, requires him to make.

51 N. E. 17. No citation of authorities is For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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