sale of any goods, wares or merchandise, which shall entitle the purchaser receiving the same to procure from any person, firm or corporation any goods, wares or merchandise free of charge or for less than the retail market price thereof, must also obtain a like license and must also pay a license fee of $6,000 a year.

It would appear that the provisions of this bill are so broad that a person receiving any stamps, coupons, tickets or other similar devices, who should use them for the purpose of procuring any goods, wares or merchandise, is also required by this bill to procure a similar license from the county auditor and to pay the license fee of $6,000.

The taxing power vested by the Constitution in the Legislature is contained in section IV. of article I. of chapter I. of the Constitution, and is expressed in the following language:

Full power and authority are hereby given and granted to the said 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 said commonwealth; and also 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.

It is readily apparent that the methods of taxation provided by the Constitution are, first, by proportional and reasonable assessments, rates and taxes upon the inhabitants of and persons resident and estates lying within the Commonwealth; and second, as the State may not since the adoption of the Federal Constitution levy duties on imports, by reasonable excises upon any produce, goods, wares, merchandise and commodities.

That the constitutionality of the proposed measure cannot be sustained under the constitutional provision in regard to the levy of proportional rates and taxes upon the inhabitants and persons resident and estates lying within the Commonwealth is so evident as to render comment or discussion un

necessary.

The question then arises, Can this proposed bill be sustained as an exercise of the power to levy reasonable excises?

The Constitution places two limitations upon the authority of the Legislature to levy excise taxes: (1) that they must be reasonable, and (2) that they may be levied only upon

produce, goods, wares, merchandise and commodities. Portland Bank v. Apthorp, 12 Mass. 252.

Clearly, the use of stamps, coupons or certificates referred to in the bill before me, if subject to an excise tax under the provision of the Constitution last above quoted, is so because it falls under the head of "commodities," and the question to be determined is whether the method of transacting business with or by the use of stamps, coupons, certificates or other similar devices is a commodity.

The Legislature of 1904 passed an act imposing an excise tax on the business of selling, giving or delivering trading stamps, checks, coupons or other similar devices, and the case of O'Keeffe v. Somerville, 190 Mass. 110, was an action brought to test the validity of that statute. The plaintiff in that case used trading stamps in his business and paid under protest to the city of Somerville the excise tax provided by the statute, and then brought suit to recover back the amount so paid. The Supreme Judicial Court in its decision in that case said:

. The first and principal question before us is whether the right to conduct the business, in the manner described in the first section (of that statute) is a commodity within the meaning of the constitution.

It is not necessary in the present case to determine the meaning of the word "commodities," in reference to every possible application of it, but we are of opinion that it is not broad enough to include every occupation which one may follow, in the exercise of a natural right, without aid from the government, and without affecting the rights or interests of others in such a way as properly to call for governmental regulation. Whatever may be done by the Congress of the United States under its general power to levy excise taxes (see Thomas v. United States, 192 U. S. 363) we are of opinion that, under the limitation to commodities, the General Court of Massachusetts cannot levy an excise tax upon the business of a husbandman or an ordinary mechanic. If this is not the necessary effect of the decision in Gleason v. McKay, ubi supra, it certainly is intimated by the language of the court in the opinion.

In the statute before us the selling or giving of trading stamps, in connection with the sale of articles, can hardly be considered a business in itself; but the business which the statute seeks to reach is the selling of articles under an arrangement to deliver stamps as a part of the sale, or as an accompaniment of it. The statute includes sales of

articles of every kind, and it describes the delivery of stamps in terms that include deliveries which, under the decisions of this court, are entirely unobjectionable in law. Commonwealth v. Sisson, 178 Mass. 578. Commonwealth v. Emerson, 165 Mass. 146. Such deliveries have generally been considered permissible in connection with the sale of articles, in the exercise of a common right, and many cases have been decided which invalidate statutes or ordinances intended to prevent such deliveries. People v. Gillson, 109 N. Y. 389. People v. Zimmerman, 102 App. Div. (N. Y.) 103. Ex parte McKenna, 126 Cal. 429. State v. Dalton, 22 R. I. 77. Long v. State, 74 Md. 565. Young v. Commonwealth, 101 Va. 853.

And further:

One of the reasons why these methods are allowable is found in the familiar principle that constitutional liberty means "the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation." The restrictions upon conduct which may be imposed in the exercise of the police power include everything that may be necessary in the interest of the public health, the public safety or the public morals, and they include nothing more. These doctrines have often been discussed and elaborated, and it is unnecessary to consider them at length in this case. In applying them to the business mentioned in this statute, no reason appears for the imposition of an excise tax upon the business of selling articles with an accompaniment of stamps which entitle the vendee to other property.

It has been further said by our Supreme Court that the mere exercise of a natural right in the performance of labor of the simplest kind, or in making an ordinary simple contract, is not a commodity within the meaning of the Constitution. Opinion of the Justices, 196 Mass. 625, 629.

The business or the method of doing business at which this bill is aimed is not, then, according to the decisions of the Supreme Judicial Court, a commodity, and therefore is not and cannot be subject to an excise tax.

It may be urged, however, that the purpose of this bill is not to levy an excise tax but to regulate by means of a license the management and conduct of the method of transacting business by or with the use of trading stamps or other similar devices. It is to be borne in mind that this method of doing business has been repeatedly held by our Supreme Judicial Court to be lawful. Commonwealth v. Emerson, 165 Mass. 146; Commonwealth v. Sisson, 178 Mass. 578. And that if the

stamps, coupons or other similar devices mentioned in this bill are used in such a way as to constitute a lottery or game of chance, such use may be punished under criminal statutes already in existence. And it should be further borne in mind that it is the constitutional right of persons in this Commonwealth to acquire and possess property and to transact legitimate business. Declaration of Rights, Art. I.

Coming now to the consideration of the question of the authority of the Legislature to impose license fees, the rule is that

If the Legislature has power to prohibit a certain act altogether [as, for instance, the sale of intoxicating liquor] it may establish a pecuniary imposition upon its performance intended as a substantial prohibition or as a drastic limitation of the number of persons who will perform the act; if, however, the Legislature has no power to prohibit the act it cannot establish a pecuniary imposition really intended as a prohibition. . . .

When the Legislature has neither the power to prohibit nor to tax a certain act, but the act is of such a nature that a reasonable inspection is necessary for the public welfare, the Legislature may impose a license fee and prohibit the performance of the act until the fee is paid, but in such a case the fee may cover only the cost of inspection. (Nichols on Taxation in Massachusetts, pp. 4 and 5; Cyc., Vol. 38, p. 927.)

The method of doing business by or with the use of stamps, coupons or other similar devices is one which the Legislature has no authority under the Constitution to prohibit, and since it is not a commodity no excise tax can be levied upon it. The license fee fixed in the proposed bill is greatly in excess of any probable cost of inspection of the business, and is evidently intended to prohibit the transaction of a business that the Supreme Court has held to be lawful.

My conclusion is that the proposed bill, if enacted, will be unconstitutional.

Very truly yours,

THOMAS J. BOYNTON, Attorney-General.

Wrentham State School

- Rights of Trustees in Mail addressed to Inmates.

Trustees of the Wrentham State School may exercise discretion in preventing delivery of objectionable mail to inmates.

Valuable enclosures in mail addressed to inmates of Wrentham State School must be delivered or returned.

Trustees of the Wrentham State School.

APRIL 18, 1914.

GENTLEMEN: You ask my opinion upon the following questions:

What are the rights of the trustees to open mail addressed to inmates of the Wrentham State School? If the contents of letters addressed to the inmates of the Wrentham State School are, in the opinion of the superintendent, objectionable, what are the powers of the school in the matter? May the letter be destroyed or must it be returned to the sender, or must it be delivered? What are the rights of the trustees as to letters sent out by the inmates of the institution? Have they the right to open such letters, and if the contents are objectionable destroy them?

Section 7 of chapter 504 of the Acts of 1909 provides that

The board shall have general supervision of all public and private institutions and receptacles for insane, feeble-minded or epileptic persons or for persons addicted to the intemperate use of narcotics or stimulants, and the Hospital Cottages for Children, and when so directed by the governor may assume and exercise the powers of the board of trustees of said state institutions in any matter relative to the management thereof. The board shall have the same powers relative to state charges in institutions or other places under its supervision and to their property as are vested in towns and overseers of the poor relative to paupers supported or relieved by towns.

By section 85 of this chapter it is further provided:

All patients in any institution under the supervision of the state board of insanity shall be allowed, subject to the regulations of the board, to write freely to the board, and letters so written shall be forwarded, unopened, by the superintendent or person in charge of the institution to said board for such disposition as it shall consider right; and the board may send any letters or other communications to any patients in any of said institutions whenever it may consider it proper so to do. All other letters to or from the patient may be sent as addressed or to his legal or natural guardian or most interested friend.