and ample opportunity given to the plaintiff (229 Mass. 494) PARKER, Tax Collector, v. RISING SUN (Supreme Judicial Court of Massachusetts. That this was furnished in advance by a stained. The case was heard by an auditor. competent attorney was not evidence of mal- The trial by jury was prolonged and full, ice or bad faith. It was not unnatural that the members of the governing committee should have felt incensed that the charge against Keates should have been made in form and substance as it was by the plaintiff upon such weak grounds. There is nothing to indicate that they were not ready to act fairly upon the evidence that might be presented at the hearing, or that they had prejudged the cause. At the hearing before the committee the position taken by them that they had become cognizant of the conduct of the plaintiff was correct. It was not for them to go forward. It was clearly the duty of the plaintiff then to justify what he had said. The committee was not required to permit the plaintiff to be represented by counsel at the hearing. It was not required by article XXIV. There was no adversary party. It was a simple inquiry into a defined matter by procedure which inevitably would be more or less informal and at which rules of evidence would not be followed. No suggestion has come to our attention indicating that the rights of the plaintiff were in any way jeopardized by the refusal to permit him to be represented by counsel. There are numerous instances of bodies making decisions of importance where attorneys are not ordinarily present. Clark v. New England Telephone & Telegraph Co., 229 Mass. 1. 118 N. E. 348, and cases collected. [8] The slanders about the plaintiff were not shown to have emanated from the defendants. The fact that they were in circulation and came to the attention of the members of the governing committee was no evidence of their bad faith. It could not rationally have been expected that the committee individually or collectively should have talked with the plaintiff concerning them. They did not relate in any degree to the cause for which he was expelled. [9] A careful examination of the whole evidence, which need not further be narrated, demonstrates that it did not justify the inference that the defendants did not keep within the limits of the governing article of the constitution of the association, that they did not vote in good faith, or that they were controlled by malice. This aspect of the case is decisive. The defendants' request for a ruling as matter of law that the plaintiff could not recover should have been granted. It becomes unnecessary to consider in detail the plaintiff's exceptions. His requests for rulings all become immaterial. He has argued no exception to evidence offered on good faith and malice which was excluded. An examination of the record fails to disclose any error in this regard. His exceptions are overruled. 1. TAXATION 166 PERSONAL PROPERTY Boulevard lanterns, burners, domes, and incandescent mantles, tools, and appliances, office furniture, and four horses, wagons, harnesses, etc., owned by a Maine corporation, which contracted with the city of Boston to furnish such equipment, and the gas consumed in them, was property taxable in its nature, included within the descriptive words of St. 1909, c. 516, § 2, subjecting to taxation merchandise, machinery, and animals owned by foreign corporations and not taxed under another provision of the law, requiring that it be assessed to the owner in the city or town where situated, and also within chapter 490, pt. 1, § 23, directing that goods, wares, and merchandise, when owned by a for eign corporation, shall be assessed in the city or town where situated. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Goods.] 2. TAXATION 211-EXEMPTION-PROPERTY IN PUBLIC USE. Such property was not devoted to a public use in such sense as to be exempt from taxation, being privately owned and open to removal and use for other purposes. 3. TAXATION 590 ACTION FOR COLLECTION OF TAXES FOREIGN CORPORATION STATUTES. The maintenance of a personal action for the collection of a tax in the name of the collector of taxes of a city against a foreign corporation as the person assessed is authorized by the express terms of St. 1909, c. 490, pt. 2, §§ 33, 34. · 4. CORPORATIONS 673-FOREIGN CORPORATIONS-DOING BUSINESS-PRESUMPTION AS TO COMPLIANCE WITH STATUTE. In an action against a Maine corporation by the collector of the city of Boston to collect taxes on its personal property, the company maintaining in the city an office, workshop, and storehouse, and conducting its business there, in may be presumed that it has complied with the provisions of the statutes as to the appointment of agents for the service of process and otherwise, so that it is authorized to do business in Massachusetts. 5. COMMERCE 16-INTRASTATE COMMERCEFOREIGN CORPORATION "INTERSTATE COMMERCE." A Maine corporation which, pursuant to contract with the city of Boston, furnished fire alarm lamps, boulevard lanterns, etc., and the gas used in them, transacted a purely local and domestic business, not an "interstate business," but one wholly intrastate in its nature. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interstate The defendants' exceptions must be sus- Commerce.] The respective states of the federal Union have absolute power wholly to exclude foreign corporations organized under the laws of another state from power to do intrastate business within their borders, or to grant them power to transact local business on such terms and conditions as may be specified. 6. CORPORATIONS 636-FOREIGN CORPORA- where situated. It is also comprehended TIONS-POWER OF STATES. within "goods, wares, merchandise" of St. 1909, c. 490, pt. 1, § 23, first, which when owned by a foreign corporation "shall be assess ed in the city or town where it is situated." New England & Savannah S. S. Co. v. Com., 195 Mass. 385, 81 N. E. 286, 11 Ann. Cas. 678; Tobey v. Kip, 214 Mass. 477, 101 N, E. 998; Bassett v. Boston, 226 Mass. 64-66, 114 N. E. 1035; Sullivan v. Ashfield, 227 Mass. 24-28, 116 N. E. 565. 7. CONSTITUTIONAL LAW 43(1)-RIGHT TO QUESTION STATUTE-ACCEPTING BENEFITS. A Maine lighting corporation having come into Massachusetts to transact a local or intrastate business by contracting with the city of [2] The property was not devoted to a pubBoston to furnish fire alarm lamps, boulevard lanterns, the gas to be used in them, etc., it lic use in such sense as to be exempt from assented to be bound by Massachusetts laws re-taxation. It was privately owned. It could specting it, one of which was the law under which the collector of the city of Boston sued be removed and used for other purposes. the corporation to recover personal property tax- Other property could have been substituted es, and the corporation, having accepted the for it. It is manifest that horses, vehicles benefits opened to it on certain conditions by and tools were wholly separate from the Massachusetts, cannot complain that the establishment of personal liability against it would be property set upon the lighting posts of the the taking of its property without due process of city of Boston, and were not irrevocably dedlaw. icated to a public use. It has been decided by several adjudications that the lighting of streets as ordinarily undertaken by cities and towns in the absence of some compelling statute is not a public function but partly at least for the protection of the private interests of the municipality. Dickinson v. Boston, 188 Mass. 595-598, 75 N. E. 68, 1 L. R. A. (N. S.) 664; Sullivan v. Holyoke, 135 Appeal from County. Superior Court, Suffolk Action by Bowdoin S. Parker, Collector of Taxes for the City of Boston, against the Rising Sun Street Lighting Company. From a judgment for plaintiff, defendant appeals. Affirmed. Innes & Turtle, of Boston, for appellant. Mass. 273; Haley v. Boston, 191 Mass. 291– Walter J. O'Malley, of Boston, for appellee. 293, 77 N. E. 888, 5 L. R. A. (N. S.) 1005; But the defendant, being a foreign corporation, contends that it is protected from a personal action against it for taxes by the provisions of the 14th Amendment to the federal Constitution on the ground that the establishment of personal liability would be the taking of its property without due pro RUGG, C. J. This is an action of contract Bolster v. Lawrence, 225 Mass. 387-390, 114 by the collector of taxes of the city of Bos-N. E. 722, L. R. A. 1917B, 1285. Therefore ton to recover taxes assessed against the de- the rule of exoneration from taxation of propfendant, a foreign corporation organized un-erty devoted to a strictly public use illustratder the laws of Maine, upon personal prop- Mass. 491, 78 N. E. 451, has no relevancy to ed by Milford Water Co. v. Hopkinton, 192 erty owned by it and physically in Boston, the present facts. during the entire year 1912, for which the tax was assessed. The defendant by virtue of a contract with the city of Boston furnished it with fire alarm lamps and with "boulevard lanterns, burners, domes, and incandescent mantles" for the lighting of public streets, parks, and other public places, all . of which were owned by the defendant and placed on lamp posts owned by the city. The defendant also furnished the gas consumed in them. It rented a building for storage, for making repairs and renewals, where also it kept needed tools and appliances, owned by it. It also hired an office equipped with its own office furniture. It owned four horses, three wagons, three carriages, two sleighs, and four harnesses. All this personal property was necessary and used for carrying out its lighting contract with the city. The tax was levied upon all this property. cess of law. No contention is made that the tax is not just in amount (provided the defendant is subject to taxation), or that all formalities of the law as to assessment have not been observed. [3] The maintenance of a personal action for the collection of the tax in the name of the collector of taxes against the defendant as the person assessed is authorized by the express terms of St. 1909, c. 490, pt. 2, §§ 33, 34. That has been a part of our law for [1] This property was taxable in its na- more than a century. Rogers v. Gookin, 198 ture. It is included within the descriptive Mass. 434, 85 N. E. 405; Harrington v. Glidwords of St. 1909, c. 516, § 2, which subjects den, 179 Mass. 486-494, 61 N. E. 54, 94 Am. to taxation "merchandise, machinery, and St. Rep. 613. That must have been the law animals owned by foreign corpo- when the defendant was admitted to do busirations and not" taxed under another provi-ness in Massachusetts. In the contract signsion of the law, and required that it be "as-ed by the defendant with the city of Boston sessed to the owner in the city or town" occurs this: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [4, 5] The defendant maintained an office in the city of Boston as well as its workshop and storehouse, and conducted its business there. It may be presumed that it had complied with the provisions of our statutes, both as to the appointment of agents for the service of process and otherwise, so that it was authorized to do business here. Doherty v. Ayer, 197 Mass. 241-248, 83 N. E. 677, 14 L. R. A. (N. S.) 816, 125 Am. St. Rep. 355; Cincinnati & Pacific Ry. v. Rankin, 241 U. S. 319-327, 36 Sup. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265. No question is made as to the sufficiency of the service in the case at bar. Manifestly the defendant was transacting a purely local and domestic business, of considerable magnitude. It was in no sense an interstate business, but was wholly intrastate in its nature.. [6] It is a fundamental principle governing the respective rights of the several states of the Union and of foreign corporations organized under the laws of other states to do intrastate business that the states have the absolute power wholly to exclude such corporations or to grant to them the power to transact local business within their borders upon such terms and conditions as may be specified. In Paul v. Virginia, 8 Wall. 168, at 181 (19 L. Ed. 357), it was said respecting corporations: "Having no absolute right of recognition in other states, but depending for such recognition and the enforcement of its contracts upon their assent, it follows, as matter of course, that such assent may be granted upon such terms and conditions as those states may think proper to impose. They may exclude the foreign corporation entirely. The whole matter rests in * their discretion." These words were quoted with approval in Horn Silver Mining Co. v. New York, 143 U. S. 305, at 314, 12 Sup. Ct. 403, 404 (36 L Ed. 164) with this comment: "This doctrine has been so frequently declared by this court that it must be deemed no longer a matter of discussion, if any question can ever be considered at rest." within its limits, or hiring offices for that purpose, or to exact conditions for allowing the corporation to do business or hire offices there, arises when the corporation is in the employ of the federal government, or when its business is strictly commerce, interstate or foreign." McCall v. California, 136 U. S. 104-112, 10 Sup. Ct. 881, 883 (34 L. Ed. 391). Doubtless there are other limitations such as that the foreign corporations may not be prohibited from resort to the federal courts in proper instances, nor required to part with their property without due process of law, nor submit to the impairment of their contracts nor submit as between themselves to unequal laws. But what may be the further limitations need not be examined, because they are not germane to the question here at issue. [7] There is nothing inherently vicious in the collection of a valid property tax by a personal action at law. That has been settled by a long line of our decisions. Boston v. Turner, 201 Mass. 190, 87 N. E. 634, and cases cited; Glidden v. Harrington, 189 U. S. 255, 23 Sup. Ct. 574, 47 L. Ed. 798. When the defendant came into this commonwealth to transact a local or intrastate business, it assented to be bound by our laws respecting it. One of those laws was that under which this action is brought. Having accepted the benefits of our markets opened to it on that among other conditions, it cannot now complain. It has submitted itself to the jurisdiction of our laws as to taxation, and is bound by them, so far as they are valid. The authorities upon which the defendant relies do not seem to us applicable to the facts here disclosed. Dewey v. Des Moines, 173 U. S. 195, 19 Sup. Ct. 379, 43 L. Ed. 665, held invalid a state law imposing upon a non-resident land owner personal liability for an assessment levied on his land for a local improvement. This decision was explained in Bristol v. Washington County, 177 U. S. 133, at 146, 20 Sup. Ct. 585, 591 (44 L. Ed. 701) to mean "that a citizen of one state cannot be cast in a personal judgment in another state on an assessment levied there on real estate for a local improvement, without service on him, or voluntary appearance, or some action on his part amounting to consent But it further was said (143 U. S. p. 315, to the jurisdiction." It was held in this case 12 Sup. Ct. 405, 36 L. Ed. 164): "Having the absolute power of excluding the foreign corporation the state may, of course, impose such conditions upon permitting the corporation to do business within its limits as it may judge expedient." This is the doctrine of the latest cases. Hammond Packing Co. v. Ark., 212 U. S. 322, 343, 29 Sup. Ct. 370, 53 L. Ed. 530, 15 Ann. Cas. 645; Baltic Mining Co. v. Mass., 231 U. S. 68, and cases cited at page 83, 34 Sup. Ct. 15, 58 L. Ed. 127. "The only limitation upon this power of the state to exclude a that a tax assessed on the personal property of a non-resident might be proved as a claim against her estate after her death, and that the sole remedy was not against the property taxed. That decision seems to us an authority supporting the conclusion here reached. The defendant relies also upon New York v. McLean, 170 N. Y. 374, 63 N. E. 380. But that was not an assessment upon property employed in business by a non-resident owner, but upon stock held in a national bank by a non-resident owner. (229 Mass. 478) SAME v. HOWARD et al. 1. REFERENCE 105 RIGHT TO TRIAL BY Under Const. Bill of Rights, art. 15, providing that in all controversies concerning property, except in cases in which it has heretofore been otherwise used and practiced, the parties have a right to trial by jury, in actions of contract, superior court rule 31, adopted under Rev. Laws, c. 158, § 3, providing that on coming in of the auditor's report either party may move for the entry of judgment on it, and the court shall order such judgment to be entered, unless within a time stated cause appears or is shown to the contrary, and that, if cause appears or is shown, the court may hear the parties and frame appropriate issues for the court or jury, did not give a judge of the superior court power to order judgment for plaintiffs on the auditor's report, where it appeared that defendants were not content with the auditor's findings, and insisted on their right to trial by jury. Assent to reference to an auditor or failure to object to the reference is not equivalent to the surrender of a claim for a jury trial already seasonably filed. Report from Superior Court, Suffolk County; Jabez Fox, Judge. Actions by John T. Farnham and others against the Lenox Motor Car Company, Daniel S. Howard, Jr., and others. On report to the Supreme Judicial Court for determination as to interlocutory orders made by the judge of the superior court denying motions for judgment according to the auditor's report. Orders affirmed. Lee M. Friedman, Louis B. King, and Swift, Friedman & Atherton, all of Boston, for plaintiffs. John H. Casey, Frederic J. Muldoon, and George W. Reed, all of Bos 2. JURY 9-ESSENCE OF RIGHT TO TRIAL BY DENCE. The essence of the right to trial by jury is that controverted facts shall be decided by the jury, and each party must have on proper demand at least one fair opportunity to present to the jury the evidence which raises a disputed question of fact. 3. JURY 25(8)-TRIAL BY JURY-PROVINCE OF SUPERIOR Court. Under superior court rule 31, as to the entry of judgment on the auditor's report, unless cause appears or is shown to the contrary, it would doubtless be within the province of the court to require the parties seeking trial by jury to state the substance of the evidence which each expected to offer at the trial, and to ascertain whether there was any disputed question of fact, or any fact to be found directly or by inference, also to frame questions the answers to which would settle such disputed fact or facts. 4. JURY 25 (1)—RIGHT TO TRIAL BY-CONSTITUTION-DEVIATION FROM RULE-DESIGN TO DELAY. If it should be found that the object of filing claim to trial by jury is a design to obstruct the adverse party's right to obtain justice promptly and without delay, the circumstance would not warrant deviation from the plain rule of the Constitution giving the right to trial by jury. St. RUGG, C. J. [1] These are actions at law sounding in contract. The defendants in each action seasonably claimed a trial by jury. Subsequently the cases were referred to an auditor, before whom a full hearing was had. His report was elaborate, covering in detail every issue. No exceptions were taken to rulings made by the auditor. 1914, c. 576, § 2. No motion was made to recommit and no objection was made except that questions of law were raised going to the root of the plaintiff's claim in the Howard case. Thereupon the plaintiffs moved in each case for judgment to be entered according to the auditor's report. These motions were founded upon rule 31 of the superior court rules, which, after regulating with some particularity proceedings before auditors, provides that: "On the coming in of the auditor's report, either party may move for entry of judgment according to said report; and the court, thereupon, shall order such judgment to be entered, unless, within a time stated, cause appears or is shown to the contrary. If cause appears or is shown 5. JURY 9-RIGHT TO TRIAL BY-CONSTITU-propriate issues for the court or jury, upon the court may hear the parties and frame apTION-ANALOGY OF PRACTICE IN EQUITY. The finality of a master's finding of fact in which the trial shall be had." equity when the evidence is not reported rests upon the exception of Const. Bill of Rights, art. 15, giving the right to trial by jury, except in "Upon the hearing of these motions it appearcases in which it has heretofore in other ways ed that the defendants were not content with the been used and practiced, so that the analogy of findings of the auditor, and insisted upon their the practice respecting the effect to be given right of trial by jury, and thereupon I ruled as to the master's report does not warrant a de-matter of law that I had not power to order parture from the express words of the Constitution as to trial by jury in cases of law. 6. REFERENCE 99(6)—AUDITOR'S REPORT AS PRIMA FACIE EVIDENCE. The following ruling was made upon these motions: judgment, but that in the exercise of my discretion I should order judgment in these cases if I had the power." This ruling was correct. Article 15 of the Bill of Rights of our Constitution is in An adverse auditor's report of unambiguous import is clothed by statute with the force of prima facie evidence, and where the opposite these words: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practiced, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners' wages, the Legislature shall hereafter find it necessary to alter it." nity to present to the jury the evidence which raises a disputed issue of fact. The rule of court here in question must be interpreted in the light of these established principles. It cannot be presumed that the justices of the superior court in framing this rule intended to deny the right It is manifest that the ordinary action of to trial by jury which underlies all our comcontract is a controversy concerning proper-mon law. It easily may be construed in har A sufficient "cause appears or is shown" why judgment should not be entered in accordance with the auditor's report as those words are used in the mony with that right. fest that a trial by jury has been seasonably claimed by either party and is insisted on by such party, and there is a real issue of fact to be tried. Great preponderance of the apparent weight of testimony will not warrant a denial of trial by jury provided there is seemingly enough to require a submission of the case to the jury under the familiar principles. ty, in which trial by jury commonly was had as of right at the time of the adoption of the Constitution. It was not one of those excepted causes in which it had theretofore "been otherways used and practiced." Stock-last sentence of the rule, if it is made manibridge v. Mixer, 215 Mass. 415, 102 N. E. 646. The case at bar in this respect is distinguishable from Ashley v. Three Justices of the Superior Court, 228 Mass. 63, 73, 116 N. E. 961. It belongs to the class of cases, therefore, where under the Constitution trial by jury must be held sacred and jealously guarded against every encroachment. The power of the superior courts is ample to make rules regulating practice and procedure, expediting the trial of causes and the general conduct of its business, and such rules are to be respected and enforced. R. L. c. 158, § 3; Pratt v. Pratt, 157 Mass. 503, 505, 32 N. E. 747, 21 L. R. A. 97; Cram v. Moore, 158 Mass. 276, 33 N. E. 524; Norwood v. Dodge, 215 Mass. 351, 102 N. E. 412. But of course such rules cannot override the Constitution. Instead By giving to the rule the interpretation urged by the defendants, the constitutional right of trial by jury would be denied by the portion of the rule here assailed. of preserving trial by jury as a fixed right, it would be made to depend upon the discreA rule of that tenor tion of the judge. would not recognize or hold sacred an absolute right. [3] Doubtless it would be within the provInce of the court under the rule to require the parties to state the substance of the evidence which each expected to offer at the trial, and to ascertain whether there was upon such statement any disputed question of fact or any fact to be found either directly or by inference; and also in appropriate instances to frame questions answers to which would settle such disputed fact or facts. Of course great care must be exercised in the use of this power and the fullest [2] The right to trial by jury may be regulated as to its method of claiming and mode of exercise in a large variety of aspects. The history of the changes in trial by jury since the Constitution is traced somewhat in Bothwell v. Boston Elevated Railway, 215 Mass. 467, 472, 473, 102 N. E. 665, L. R. A. 1917F, 167, Ann. Cas. 1914D, 275. The decisions there are reviewed and the statutes summarized. What there is said need not now be repeated. See also Mead v. Cutler, 194 Mass. 277, 80 N. E. 496; Com-opportunity given to parties to make a commonwealth v. Gloucester, 110 Mass. 491, 496; Gavett v. Manchester & Lawrence Railroad Co., 16 Gray, 501, 506, 77 Am. Dec. 422. Doubtless the power of regulation of the nonessential attributes of trial by jury has not been exhausted. Statutes, going further in this direction than any of our own, have been upheld in other jurisdictions. Williams v. Gottschalk, 231 Ill. 175, 83 N. E. 141, 12 Ann. Cas. 376; Morrison Hotel, etc., Co. v. Kirsner, 245 Ill. 431, 92 N. E. 285, 137 Am. St. Rep. 335; Randall v. Kehlor, 60 Me. 37, 11 Am. Rep. 169; Humphrey v. Eakeley, 72 N. J. Law, 424, 60 Atl. 1097, 5 Ann. Cas. 929; Jones v. Spear, 21 Vt. 426; Smith v. Western Pacific Railroad Co., 203 N. Y. 499, 96 N. E. 1106, 40 L. R. A. (N. S.) 137, Ann. Cas. 1913B, 264. No one of our statutes or decisions touches or impairs in any degree the substance of that right. The essence of that right is that controverted facts shall be decided by the jury. Each party must have plete statement with the knowledge that it is to be made the basis of a ruling of law upon the rights of the parties. But there is no fundamental objection to a ruling of law made upon a fair statement of what the evidence is expected to be. In reason there is no distinction between a rule of this nature and the well-recognized practice of this court in appropriate cases of permitting a ruling to be made on the footing that on the opening statement of counsel to the jury no case is shown in law. Hey v. Prime, 197 Mass. 474, 84 N. E. 141, 17 L. R. A. (N. S.) 570; Lee v. Blodget, 214 Mass. 374, 377, 102 N. E. 67; Stevens v. Nichols, 155 Mass. 472, 29 N. E. 1150, 15 L. R. A. 459. This rule prevails generally. Oscanyan v. Arms Co., 103 U. S. 261, 263, 264, 26 L. Ed. 539; Butler v. National Home for Soldiers, 144 U. S. 64, 12 Sup. Ct. 581, 36 L. Ed. 346; Carr v. Delaware, Lackawanna & Western Railroad, 78 N. J. Law, 692, 75 Atl. 928; Jordan v. Reed, |