356 Mass. 727

October 31, 1969

This petition for a writ of mandamus, in which the petitioner alleges that a search warrant was improperly issued by the respondent, prays that this court command the respondent to recall and quash the warrant and order the return of the property seized. The petitioner excepted to the refusal of the single justice to issue an order of notice to the respondent. The single justice correctly ruled that the petition does not "present a matter of substance proper for judicial consideration." Nichols v. Dacey, 329 Mass. 598, 600. There is no allegation of failure by the respondent to perform a legal duty upon the demand of the petitioner. Knights v. Treasurer & Recr. Gen. 236 Mass. 336, 337. Rather, without alleging any action below, the petition asks this court to dictate the substance of the action to be taken by the respondent. This is beyond the scope of the writ which is limited to compelling lower courts to exercise their jurisdiction in matters properly before them. Crocker v. Justices of the Superior Court, 208 Mass. 162, 164-165. Taylor v. Thompson, 232 Mass. 269.

Exceptions overruled.


356 Mass. 727

November 3, 1969

The Appellate Tax Board in a decision for Walter E. Heller & Company, Inc. (Heller) granted it an abatement of corporation excise taxes for the years 1962 to 1964, inclusive, and of an instalment of an estimated corporate excise for 1965. Heller contended that in this Commonwealth it was engaged exclusively in interstate commerce, consisting of lending money from its New York office (by factoring, making collateral loans, and purchasing instalment obligations) to business entities operating in Massachusetts, and in activities related to such loans. The board made ample subsidiary findings. These were supported by substantial evidence. The board concluded that Heller's chief Massachusetts activity was of an "interstate nature and that all other [such] activity . . . was in aid of" Heller's "lending money from New York to its Massachusetts clientele." Similar issues were fully discussed in M. A. Delph Brokerage Co. Inc. of New England v. State Tax Commn. 347 Mass. 64, 67-69. See Alpha Portland Cement Co. v. Massachusetts, 268 U.S. 203, 218-220; Spector Motor Serv. Inc. v. O'Connor, 340 U.S. 602, 605-610. Cf. Atlantic Lumber Co. v. Commissioner of Corps. & Taxn. 298 U.S. 553, 555-557; Union Brokerage Co. v. Jensen, 322 U.S. 202, 209-212; Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 463-464, 466-469, 470-477, 486; General Motors Corp. v. Washington, 377 U.S. 436, 446-448. Upon the findings, Heller's Massachusetts activities were interstate commerce or incidental thereto. We think that the Alpha Portland Cement Co. and Spector

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Motor Serv. Inc. cases, supra, so long as they remain unmodified by later decisions or Congressional action, preclude the imposition of a Massachusetts corporation excise in its present form upon a foreign corporation with respect to engaging in the Commonwealth exclusively in interstate commerce. See G. L. c. 63, Section 39 (as amended through St. 1960, c. 548, Section 7, and St. 1962, c. 756, Section 8; later amendments not here applicable). For a review of decisions largely concerning broader tax statutes in other States, see Roadway Exp. Inc. v. Director, Div. of Taxn. 50 N. J. 471, esp. at pp. 491-492. See also 15 U. S. C. (1964), Sections 381-384, and 48 A. B. A. Journ. 35, 36, 1133.

Decision of the Appellate Tax Board affirmed.