second track across the Monument River beside the existing track now crossing the same."

The bridge which was constructed by the defendant was of pile construction at either end, and of steel construction with concrete piers for a distance of two hundred and five feet in the centre. The draw span was one hundred and sixty feet in length, and twenty-foot steel girders extended from the concrete piers to the piles. The railroad company expended certain sums for the maintenance of the piling, and brought this action for reimbursements under the above quoted contract. It is not disputed that the expenses incurred were reasonable and proper and that statements thereof were duly rendered to the canal company. The controlling question raised by the defendant's exceptions is whether that portion of the structure upon which the expenditures were made was included in "the bridge across the canal" which it is obliged to maintain.

An examination of the contract, in the light of the statute under which it was executed, and of the physical facts, disposes of the defendant's contention that the duty of maintaining a bridge across said canal extends only to the steel construction supported upon three concrete piers and covering a distance of two hundred and five feet; and that no duty is imposed upon it to maintain any of the piles which are not within the "channel of the canal" under the draw span. By the terms of its charter (St. 1899, c. 448, § 4) the location of the canal was to be "not exceeding one thousand feet in width;" and when the point of crossing was determined, the canal company, according to the findings of the trial judge, dredged Monument River from one bank to the other, and the excavations where the railroad crossed involved a deepening of the entire width of the river. The structure which the canal company was to build and maintain was (§ 11) "a bridge or bridges across said canal, or tunnel or tunnels under the same, suitable for the passing of railroad and highway traffic." That the Legislature intended to impose upon the canal company the burden of maintaining the entire bridge crossing the canal, and not merely the section containing the draw, seems apparent from the alternative obligation to build and maintain a tunnel, and the further duty placed upon it (§§ 14, 15) of providing and maintaining in the towns of Bourne and Sandwich "suitable ferries or bridges across the

canal, or a suitable tunnel or tunnels under the same," and of constructing highways over its location to connect therewith.

The contract into which the parties entered to expedite the work contemplated by the statute, expressly provided that the canal company should make the necessary application to determine "at what point or points said railroad shall cross said canal by drawbridge or drawbridges." Art. II. In Articles III and IV the "bridge" was referred to as a single and entire structure. It was expressly provided in Art. VI, above quoted, that the canal company should build and maintain "the bridge across the canal and properly equip it with signals;" and in the same article is a provision for "a second track across the Monument River beside the existing track now crossing the same." The supplementary contract of July 20, 1911, also refers to "the proposed drawbridge over Monument River." The plans show that some of the pile bents are within what the defendant refers to as "the canal channel." Its contention, that it is obliged to maintain only the three piers and the steel construction essential to the operation of the bascule draw, would exclude not only this piling but also the twenty-foot steel girders extending from piers A and C to the adjacent pile bents. As stated in the plaintiff's brief, the canal company's offer is "to maintain something which is not itself a bridge and which fails to cross the canal either as they drew it or as they built it." See Commonwealth v. Deerfield, 6 Allen, 449; White v. Quincy, 97 Mass. 430; Boston, petitioner, 221 Mass. 468; Freeholders of Sussex v. Strader, 3 Harr. 108; Tolland v. Willington, 26 Conn. 578.

We do not adopt the defendant's main contention that "the bridge" is to be taken as meaning only the drawbridge section over the "canal channel." Consequently it is unnecessary to discuss the several exceptions in detail.

Exceptions overruled.

TAX COMMISSIONER vs. ELIOT T. PUTNAM.

SAME vs. SUSAN E. GARFIELD.

Present: RUGG, C. J., LORING, BRALEY, DE COURCY, CROSBY, PIERCE, & CARROLL, JJ.

Tax, On income. Constitutional Law, Income tax. Words, "Income," "Accumulated profits," "Distribution of capital."

A tax under St. 1916, c. 269, § 5 (c), § 7, upon the excess of the gains over the losses arising from sales of intangible personal property during the year 1916 is a tax on income and is valid under the Forty-fourth Amendment of the Constitution.

The circumstances under which the Forty-fourth Amendment of the Constitution was adopted, especially the fact that the United States income tax of October 3, 1913, with its broad and inclusive terms as contained in 38 U. S. Sts. at Large, c. 16, which was passed under the Sixteenth Amendment of the Constitution of the United States authorizing a tax on incomes, was in force, require the conclusion that it was the purpose of the people of the Commonwealth to include within the scope of the word "income" everything that by reasonable intendment can be said to be income.

Gains derived from the sale of rights to subscribe to new shares of a corporation issued in the year 1916 to a taxpayer who was a stockholder previous to that year are taxable as income under the provisions of the same statute.

In making the decision stated above it was said, that upon the record it was not necessary to decide, whether rights to subscribe for shares of capital stock, when exercised by such a subscription, are taxable as income. Under the same statute a stock dividend declared and paid after the statute took effect out of profits earned before the statute took effect lawfully is taxable as income of the same class as a cash dividend; and this is so even when the stock dividend was declared out of accumulations of earnings that before 1916 had been invested in permanent additions to the plant of the corporation declaring the dividend.

Under the same statute an extra cash dividend of thirty-three and one third per cent on shares of corporate stock owned by the taxpayer before the year 1916, declared and paid after the statute took effect out of undistributed earnings that accrued before March, 1913, lawfully is taxable as income.

TWO PETITIONS, filed respectively on March 12 and March 22, 1917, by the Tax Commissioner, each for a writ of mandamus ordering the respective respondents to file a return of his and her taxable income for the year 1916 as required by law.

Each of the cases came on to be heard by Loring, J., upon the petition, the answer and agreed facts. In each case the single

justice found the facts to be as stated in the agreed facts and at the requests of the parties reported all questions of law for determination by the full court.

The cases were argued together at a special sitting of this court on April 13, 1917, before Rugg, C. J., Loring, Braley, De Courcy, & Pierce, JJ., and afterwards were submitted on briefs to all the justices.

W. H. Hitchcock, Assistant Attorney General, for the petitioner. R. Walcott, for the respondent Putnam.

C. R. Lamson, for the respondent Garfield.

RUGG, C. J. The Forty-fourth Amendment to the Constitution of this Commonwealth, approved and ratified by the people in November, 1915, is in these words: "Full power and authority are hereby given and granted to the General Court to impose and levy a tax on income in the manner hereinafter provided. Such tax may be at different rates upon income derived from different classes of property, but shall be levied at a uniform rate throughout the Commonwealth upon incomes derived from the same class of property. The General Court may tax income not derived from property at a lower rate than income derived from property, and may grant reasonable exemptions and abatements. Any class of property the income from which is taxed under the provisions of this article may be exempted from the imposition and levying of proportional and reasonable assessments, rates and taxes as at present authorized by the Constitution. This article shall not be construed to limit the power of the General Court to impose and levy reasonable duties and excises." The inquiry raised on this record chiefly concerns the meaning of "income" as that word is used in the grant of power to the General Court to "impose and levy a tax on income.

The Constitution of Massachusetts is a frame of government for a sovereign power. It was designed by its framers and accepted by the people as an enduring instrument, so comprehensive and general in its terms that a free, intelligent and moral body of citizens might govern themselves under its beneficent provisions through radical changes in social, economic and industrial conditions. It declares only fundamental principles as to the form of government and the mode in which it shall be exercised. Certain great powers are conferred and some limita

tions as to their exercise are established. The original Constitution and all its Amendments together form one instrument. It is to be interpreted in the light of the conditions under which it and its several parts were framed, the ends which it was designed to accomplish, the benefits which it was expected to confer, and the evils which it was hoped to remedy. It is a grant from the sovereign people and not the exercise of a delegated power. It is a statement of general principles and not a specification of details. Amendments to such a charter of government ought to be construed in the same spirit and according to the same rules as the original. It is to be interpreted as the Constitution of a State and not as a statute or an ordinary piece of legislation. Its words must be given a construction adapted to carry into effect its purpose.

The cases at bar raise four main questions:

(1) Are excesses of gains over losses in the purchase and sale of intangible personal property by one not engaged in the business of dealing in such property taxable as income?

(2) Are gains derived from the sale of rights to subscribe for new shares of stock to be issued by an existing corporation taxable as income?

(3) Is a stock dividend, declared and issued by a corporation after the statute went into effect, out of an accumulation of profits earned and invested in its business before the statute was enacted, taxable as income?

(4) Is a cash dividend declared and paid after the statute went into effect out of profits earned before the statute took effect, taxable as income?

1. We proceed to the discussion of the first main question.

Pursuant to the grant of power given by the Forty-fourth Amendment, the income tax law, St. 1916, c. 269, was enacted. It is provided by § 5 that "Income of the following classes received by any inhabitant of this Commonwealth, during the calendar year prior to the assessment of the tax, shall be taxed as follows: (c) The excess of the gains over the losses received by the taxpayer from the purchases or sales of intangible personal property, whether or not the said taxpayer is engaged in the business of dealing in such property, shall be taxed at the rate of three per cent per annum. The act took effect so

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