[G. L. c. 63, § 67 or foreign carrying trade, which tax shall be one-third of one per cent upon the value of such interest as determined by him. Such tax shall become due and shall be collected at the same time and in the same manner as other taxes assessed to such corporations. The president and treasurer of every such corporation owning an interest in any such ship or vessel shall annually, within thirty days after April first, make a return to the commissioner, on oath, setting forth in detail the name of the ship or vessel, the interest of the corporation therein, and the value of such interest. If the commissioner is satisfied of the truth of the return he shall deduct said value from the fair cash value of the shares of the corporation as estimated by him for the purpose of determining the true value of its corporate excess, if it is taxable under sections thirty to thirty-eight, inclusive, or of its corporate franchise, if it is taxable under section fifty-eight.

Ships and vessels have always been the subject of taxation in this commonwealth as personal property.1 The fact that they are engaged in foreign or interstate commerce does not exempt them from taxation as property under state authority at the domicile of the owner or in any place where they may fairly be said to have a situs,2 provided they are taxed at no greater rate than other property, and a tax based on value and not on carrying capacity is not a violation of the prohibition against tonnage duties contained in the United States constitution.3 In 1881 however a statute was enacted for the purpose of encouraging foreign commerce exempting ships and vessels engaged in the foreign carrying trade from taxation and providing that the income derived from such vessels should be taxed instead of the vessels themselves. This statute had no application to corporations, which of course had not been directly taxed for personal property, and such vessels, when owned by corporations, continued to be indirectly taxed so far as they enhanced the value of the capital stock of the corporations which owned them. In 1902 the method of taxing vessels engaged in the foreign

'St. 1780, c. 43; St. 1811, c. 78; R. S. c. 7, §4; G. S., c. 11, §4; P. S., c. 11, §4; R. L., c. 12, §4; G. L., c. 59, §4, supra, page 191.

2 Old Dominion Steamship Co. v. Virginia, 198 U. S. 299 (1905). The situs of a vessel is the domicile of its owner unless it is permanently located and kept in a different place. Southern Pacific Co. v. Kentucky, 222 U. S. 63 (1911).

§14.

3 State Tonnage Tax Cases, 12 Wall. 204 (1870), and see also supra, Part I,

St. 1881, c. 284.

G. L. c. 63, §§ 67-69]

carrying trade was changed to its present form and an excise tax of one-third of one per cent was imposed, in lieu of all other taxes upon the interest of every owner of such a vessel, whether a person, a partnership or a corporation. In 1913 this statute was extended to include ships engaged in the interstate carrying trade. Persons and partnerships since the enactment of this statute pay this tax to the towns in which they are taxable for personal property and are exempted from any other tax upon their interests in such vessels, and corporations pay this tax to the commonwealth and are entitled to a deduction in their franchise tax on account of the value of their interests in such vessels.8

Excises on Special Privileges Not Affected by this Chapter

SECTION 68. The taxes imposed by this chapter upon any corporation shall not affect or prevent the imposition and collection of any other tax now authorized, or that may hereafter be authorized, upon any especial privilege, franchise or business enjoyed or exercised by such corporation.

Inspection of Books and Papers

SECTION 69. Every corporation taxable under this chapter, except a foreign corporation taxable under section twenty-one, twentythree or fifty-eight, shall, when required for the purposes of any tax except that imposed on its income by section thirty-two or thirty-nine, submit its books to the inspection of the commissioner, and its treasurer and directors to examination on oath relative to all matters affecting the determinations to be made by said commissioner.

A corresponding provision is found in section forty-four authorizing the examination of the books of a corporation for the purpose of verifying its return of income, but in that section the right of examination is limited to two years after the filing of the return, and there is no provision for the examina

5 St. 1902, c. 374, 375.

St. 1913, c. 473.

"G. L. c. 59, §8, supra, page 220.

In the consolidation of the General Laws this statute was modified to make it clear that it applied to domestic business corporations taxable under the 1919 statute.

[G. L. c. 63, § 69 tion on oath of the treasurer and directors of the company. It is to be noted that the penalty imposed by section seventy-nine for refusal to submit the books for examination is limited to the public service corporations and trust companies taxable under section fifty-eight, and does not apply to business corporations. If such corporations refuse to submit their books for examination, the only means available to the commissioner for compelling them to comply with his demand is a petition for writ of mandamus.

This limitation upon the right of inspection is in accord with sound principles. The Massachusetts constitution provides that no person shall be compelled to furnish evidence against himself1 and protects every person from unreasonable searches and seizures of his papers. The prohibition against unreasonable searches includes any unreasonable compulsory disclosure of private papers.3 A requirement that a person submit all his books and papers for examination without a specific limitation to those required for the particular exigency is unreasonable;" and in any event no person should be compelled to disclose his private affairs until he has been required to do so after a hearing before a cempetent judicial tribunal. The statute does not authorize an examination of the books of a corporation unless it is necessary in order to properly ascertain its liability to taxation under this chapter. Under its visitorial powers over corporations, a state may compel a corporation to submit its books and papers to examination, even though the disclosure thus made will lead to a criminal prosecution,' but it is in accord with sound principles and possibly essential to the constitutionality of the act, in the case of purely private business corporations, that the examination be required only after a judicial hearing, in which the commissioner is bound to show that the examination is reasonably necessary in order to enforce the provisions of the corporation tax law.

'Declaration of Rights, Art. XII.

2 Declaration of Rights, Art. XIV.

3 Boyd v. United States, 116 U. S. 616 (1886).

Hale v. Henkel, 201 U. S. 43 (1906).

Robinson v. Richardson, 13 Gray 454, 458 (1859). See also Consolidated Rendering Co. v. Vermont, 207 U. S. 541 (1908).

* Commonwealth v. Cary Improvement Co., 98 Mass. 19, 22 (1867). 'Hale v. Henkel, 201 U. S. 43 (1906); Wilson v. United States, 221 U. S. 361 (1911).

G. L. c. 63, §§ 70, 71]

Interest on Overdue Taxes

SECTION 70. Corporations which neglect to pay taxes assessed and certified to the state treasurer by the commissioner shall pay interest at the rate of six per cent per annum from the time when such taxes were payable until paid, if such payment is made before the commencement of proceedings for the recovery thereof, and twelve per cent if made after the commencement thereof.

Application to the Board of Appeal

SECTION 71. (As amended by St. 1921, chapter 123.) Except as otherwise provided, any party aggrieved by any decision of the commissioner upon any matter arising under this chapter from which an appeal is given, may apply to the board of appeal from decisions of the commissioner within ten days after notice of his decision. Said board shall hear and decide the subject matter of such appeal, and give notice of its decision to the commissioner and the appellant; and its decision shall be final and conclusive as to questions of fact, although payments have been made as required by the decision appealed from. Any overpayment of tax determined by decision of said board. of appeal shall be reimbursed by the commonwealth. Taxes, excises, costs or expenses of any kind assessed upon any corporation, company or association, except a municipal corporation, which are unpaid and are uncollectible, may be abated by the board of appeal on the recommendation of the attorney general and commissioner at any time after the expiration of five years from the date when the same became payable.

The provision for application to the board of appeal1 corresponds in a measure to the statutory proceedings for the abatement of local property taxes by appeal to the county commissioners, and is the exclusive remedy in case of the overvaluation of the franchise, the corporate excess or the income of a corporation.2

While the findings of the board of appeal are final on questions of fact, its decisions on questions of law may be reviewed on petition for writ of certiorari. If the applicant desires to

1 See as to the Board of Appeal G. L. c. 6, §21, supra, page 139.

* Boston Manufacturing Co. v. Commonwealth, 144 Mass. 598 (1887); Attorney-General v. East Boston Co., 222 Mass. 450 (1916).

[G. L. c. 63, §§ 71-75 inc. have the record in proper form for raising the desired questions of law in certiorari proceedings, he should file carefully prepared requests for rulings of law, and the board may be compelled to certify how it disposed of such requests.

Collection of Corporation Taxes

SECTION 72. When a tax or excise of any kind remains due to or is claimed by the commonwealth from a corporation, company or association, whether existing by authority of the commonwealth or otherwise, except a municipal corporation, for ten days after notice given through the mail by the state treasurer to its treasurer or other financial agent that such tax or excise is due and unpaid, the state treasurer may, in addition to other modes of relief, issue his warrant, directed to the sheriff or his deputies of the county where such corporation, company or association has its place of business, commanding the collection of such tax or excise. Such warrant may be substantially in the form of and served in the same manner as those issued by the assessors of towns. Such warrant shall not run against the body of any person, nor shall any property of such delinquent corporation, company or association be exempt from seizure and sale thereon. The officer having such warrant shall collect such tax or excise, and interest upon the same at the rate of twelve per cent per annum from the time when such tax or excise became due, and may collect and receive for his fees the sum which an officer would be entitled by law to receive upon an execution for a like amount. He shall also collect one dollar for the warrant, which he shall pay to the state treasurer.

SECTION 73. If a corporation, company or association fails to pay a tax levied under this chapter, except the excise imposed by section. sixty-two, the treasurer may recover the same in contract in the name of the commonwealth.

SECTION 74. The lessee of the works, structures, real estate or machinery of any corporation, company or association taxed under this chapter shall also be liable for the payment of the tax, and upon such payment may, in the absence of an agreement to the contrary, retain it out of the rent of the property, or recover it in an action against the lessor.

SECTION 75. In addition to the methods provided by sections seventy-two and seventy-three, taxes under this chapter, except sec